XXXXXX SCIENTIFIC INTERNATIONAL INC.
COMMON STOCK WARRANT ACQUISITION AGREEMENT
Dated as of January 21, 1998
TABLE OF CONTENTS
Page
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. ORIGINAL ISSUE OF WARRANTS . . . . . . . . . . . . . . . . . . . . . . 2
2.1. Form of Warrant Certificates . . . . . . . . . . . . . . . . 2
2.2. Execution and Delivery of Warrant Certificates . . . . . . . . . 2
3. EXERCISE PRICE; EXERCISE OF WARRANTS; COMPLIANCE WITH THE
SECURITIES ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1. Exercise Price . . . . . . . . . . . . . . . . . . . . . . . 2
3.2. Exercise of Warrants . . . . . . . . . . . . . . . . . . . . 3
3.3. Expiration of Warrants . . . . . . . . . . . . . . . . . . . 3
3.4. Method of Exercise . . . . . . . . . . . . . . . . . . . . . 3
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE
INVESTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 Organization, Authority. . . . . . . . . . . . . . . . . . 4
4.2 Enforceability. . . . . . . . . . . . . . . . . . . . . . . 4
4.3 Non-Contravention. . . . . . . . . . . . . . . . . . . . . . . . 4
4.4 Consents, Approvals and Notices. . . . . . . . . . . . . . . 5
4.5 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.6 Investment Representations. . . . . . . . . . . . . . . . . . . 5
4.7 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. . . . . . . . . . . . . 8
5.1 Organization and Standing. . . . . . . . . . . . . . . . . . . . 8
5.2 Capitalization. . . . . . . . . . . . . . . . . . . . . . . 8
5.3 Authorization. . . . . . . . . . . . . . . . . . . . . . . . 8
5.4 Securities Act. . . . . . . . . . . . . . . . . . . . . . . 9
5.5 Non-Contravention. . . . . . . . . . . . . . . . . . . . . . . . 9
5.6 Consents, Approvals and Notices. . . . . . . . . . . . . . . 9
5.7 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. RIGHTS OF HOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7.1. Stock Dividend and Distributions; Stock Splits; Reverse Stock
Splits; Reclassifications . . . . . . . . . . . . . . . . . . . . 9
7.2 Other Dilutive Events. . . . . . . . . . . . . . . . . . . 10
7.3. Notice of Adjustment . . . . . . . . . . . . . . . . . . . . . 10
7.4. Statement on Warrants . . . . . . . . . . . . . . . . . . . . . 10
7.5. Fractional Interest . . . . . . . . . . . . . . . . . . . . . . 10
8. WARRANT TRANSFER BOOKS . . . . . . . . . . . . . . . . . . . . . . 11
9. WARRANT HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9.1. No Voting Rights . . . . . . . . . . . . . . . . . . . . . 11
9.2. Right of Action . . . . . . . . . . . . . . . . . . . . . . . . 11
10. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10.1. Reservation of Shares . . . . . . . . . . . . . . . . . . 12
10.2. Determinations by Board of Directors . . . . . . . . . . 12
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.1. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 12
11.2. Surrender of Certificates . . . . . . . . . . . . . . . . 12
11.3. Mutilated, Destroyed, Lost and Stolen Warrant Certificates 12
11.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11.5. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 13
11.6. Persons Benefitting . . . . . . . . . . . . . . . . . . . 13
11.7. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 13
11.8. Amendments . . . . . . . . . . . . . . . . . . . . . . . . 14
11.9. Headings . . . . . . . . . . . . . . . . . . . . . . . . . 14
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
EXHIBIT A Institutional Investors' Schedule of Warrants to be Acquired
EXHIBIT B Individual Investors' Schedule of Warrants to be Acquired
EXHIBIT C Form of Voting Warrant Certificate
EXHIBIT D Form of Non-Voting Warrant Certificate
COMMON STOCK WARRANT ACQUISITION AGREEMENT
AGREEMENT dated as of January 21, 1998 between Xxxxxx
Scientific International Inc., a Delaware corporation (the "Company"), and
(i) each of the investors listed on Exhibit A attached hereto (individually,
an "Institutional Investor" and collectively, "Institutional Investors") and
(ii) those persons listed on Exhibit B (each, an "Individual Investor" and
with (i) above, "Investors").
In connection with the commitment by the Investors to purchase
cumulative preferred stock of the Company (the "Preferred Stock"), prior to
the execution of the Second Amended and Restated Agreement and Plan of
Merger, dated November 14, 1997, as amended, between FSI Merger Corp. ("FSI")
and the Company (the "Merger Agreement") pursuant to which FSI will be merged
with and into the Company (the "Merger"), the Company has agreed to issue to
the Investors warrant certificates evidencing 516,663 warrants (the
"Warrants") to purchase the number of shares of the voting common stock, par
value $0.01 per share ("Voting Common Stock") and non-voting common stock,
par value $.01 per share ("Non-Voting Common Stock" and, together with the
Voting Common Stock, "Common Stock"), of the Company set forth opposite each
Investor's name on Exhibits A and B (the "Shares"). The certificates
evidencing Warrants to purchase Voting Common Stock ("Voting Common Stock
Certificates") and certificates evidencing Warrants to purchase Non-Voting
Common Stock ("Non-Voting Common Stock Certificates" and, collectively with
Voting Common Stock Certificates, "Warrant Certificates") are attached hereto
as Exhibits C and D.
In consideration of the foregoing, or the purpose of defining
the terms and provisions of the Warrants and the respective rights and
obligations thereunder of the Company and the record holders of the Warrants,
the Company and each Investor hereby agrees as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
Company: the meaning set forth in the preamble to this
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Agreement and its successors and assigns.
Exercise Price: the meaning set forth in Section 3.1.
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Expiration Date: the tenth anniversary of this Agreement.
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Holders: from time to time, the holders of the
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Warrants and, unless otherwise provided or indicated herein, the holders of
the Underlying Shares.
Investors: the meaning set forth in the preamble to this
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Agreement.
Investors' Agreement: the Investors' Agreement, dated as of
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even date herewith, by and among the Company, the Investors and certain other
parties named therein.
Person: any individual, corporation, partnership, joint
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venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
Securities Act: the Securities Act of 1933, as amended.
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Shares: the meaning set forth in Article I of the Investors'
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Agreement.
Underlying Shares: the shares of Common Stock issuable or
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issued upon the exercise of the Warrants.
Warrant Certificates: the meaning set forth in the preamble to
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this Agreement.
Warrants: the meaning set forth in the preamble to this
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Agreement.
2. ORIGINAL ISSUE OF WARRANTS.
2.1. Form of Warrant Certificates. The Warrant
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Certificates shall be in registered form only, and shall be dated the date on
which executed by the Company and may have such legends and endorsements
typed, stamped, printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation pursuant thereto or with any rule or regulation of any securities
exchange on which the Warrants may be listed, or to conform to usage.
2.2. Execution and Delivery of Warrant Certificates. Warrant
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Certificates evidencing Warrants to purchase a number of duly authorized,
validly issued, fully paid and nonassessable Shares shall be executed, on the
date of this Agreement, by the Company and delivered to and issued in the
name of each Investor. The Warrant Certificates shall be executed on behalf
of the Company by its President or by any of its Vice Presidents, either
manually or by facsimile signature printed thereon. In case any
officer of the Company whose signature shall have been placed upon any of the
Warrant Certificates shall cease to be such officer of the Company before
issue and delivery thereof, such Warrant Certificates may, nevertheless, be
issued and delivered with the same force and effect as though such person had
not ceased to be such officer of the Company.
3. EXERCISE PRICE; EXERCISE OF WARRANTS; COMPLIANCE WITH THE
SECURITIES ACT.
3.1. Exercise Price. Each Warrant Certificate shall
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entitle the Holder thereof, subject to the provisions of this Agreement, to
receive one share of either Voting Common Stock or Non-Voting Common Stock
for each Warrant represented thereby at an exercise price (the "Exercise
Price") of $48.25 per share, subject to adjustment as herein provided.
3.2. Exercise of Warrants. The Warrants shall be
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exercisable in whole or in part on or prior to the Expiration Date.
3.3. Expiration of Warrants. The Warrants shall terminate
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and become void at the close of business on the Expiration Date.
3.4. Method of Exercise.
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(a) In order to exercise a Warrant the Holder thereof must
surrender the Warrant Certificate evidencing such Warrant to the Company at
its principal office, together with the Exercise Subscription Form on the
reverse of or attached to the Warrant Certificate duly executed, accompanied
by payment, in cash or by certified or by official bank check payable to the
order of the Company, in the amount equal to the Exercise Price multiplied by
the number of Warrants being exercised. As an alternative to the payment of
the aggregate Exercise Price in the manner set forth in Section 3.4, the
Holder may (i) deliver as payment, in whole or part, of the aggregate
Exercise Price, Common Stock to the Company, in which case an amount equal to
the aggregate "fair market value" on the date of exercise of the Common Stock
delivered shall be applied towards the payment of the aggregate Exercise
Price and/or (ii) with the approval of the Board of Directors of the Company,
instruct the Company, by written notice accompanying the surrender of the
Warrant and the Exercise Subscription Form, to apply to the payment of all or
a portion of the aggregate Exercise Price such number of shares of Common
Stock otherwise issuable to such Holder upon such exercise as shall be
specified in such notice, in which case an amount equal to the aggregate
"fair market value" of the specified number of shares on the date of exercise
shall be deemed to have been paid to the Company and the number of shares
issuable upon such exercise shall be reduced by such specified number. If
the aggregate Exercise Price exceeds the aggregate fair market value
of the Common Stock delivered or applied pursuant to (i) and/or (ii) above,
the Holder shall pay to the Company, in the manner set forth in Section 3.4,
an amount equal to such excess. Notwithstanding anything to the contrary in
this Section 3.4, if the aggregate fair market value of the Common Stock
delivered or applied pursuant to (i) and/or (ii) above exceeds the aggregate
Exercise Price, in no event shall the Holder be entitled to receive any
amounts from the Company. The "fair market value" means, with respect to
Common Stock, the fair market value of such Common Stock determined by such
methods or procedures as shall be established from time to time by the
Company. Unless otherwise determined by the Board in good faith, the per
share fair market value of Common Stock as of a particular date shall mean,
if public shareholders hold, as of the last day of the prior fiscal quarter,
shares of Common Stock worth $100,000,000 or more (as determined by the
Company), (i) the closing sales price per share of Common Stock on the
national securities exchange on which the Common Stock is principally traded,
for the last preceding date on which there was a sale of such Common Stock on
such exchange, or (ii) if the shares of Common Stock are then traded in an
over-the-counter market, the average of the closing bid and asked prices for
the shares of Stock in such over-the-counter market for the last preceding
date on which there was a sale of such Stock in such market, or if public
shareholders do not hold, as of the last day of the prior fiscal quarter,
shares of Common Stock worth more than $100,000,000 or if the shares of
Common Stock are not then listed on a national securities exchange or traded
in an over-the-counter market, such value as the Company, in its sole
discretion, shall determine in good faith.
(b) If fewer than all the Warrants represented by a Warrant
Certificate are surrendered for exercise, such Warrant Certificate shall be
surrendered and a new Warrant Certificate of the same tenor and for the
number of Warrants that were not surrendered shall be executed by the
Company. The new Warrant Certificate shall be registered in such name or
names as may be directed in writing by the Holder and delivered to the Person
or Persons entitled to receive the same.
(c) Upon exercise of a Warrant in conformity with the foregoing
provisions, the Company shall issue or cause to be issued in the name of and
delivered to the Holder of such Warrant or, subject to Section 11.1, as such
Holder (upon payment by such Holder of any applicable transfer taxes) may
direct, a certificate or certificates for the number of duly authorized,
validly issued, fully paid and nonassessable Shares to which such Holder
shall be entitled upon such exercise together with an amount in cash in lieu
of any fraction of a share as provided in Section 7.5.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE INVESTORS.
Each Investor represents and warrants, in each instance as to
itself only and not as to any other Investor, to the Company that:
4.1 Organization, Authority. Each Institutional Investor
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is duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization. Each Individual Investor has the legal
capacity to enter into this Agreement. Each Investor has the power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery by each Investor of this
Agreement and the consummation by such Investor of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of such Investor.
4.2 Enforceability. This Agreement, when executed and
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delivered by all parties hereto, will constitute the valid and legally
binding obligation of each Investor, enforceable against each Investor in
accordance with its terms, except to the extent enforceability may be limited
by bankruptcy laws, insolvency laws, reorganization laws, moratorium laws or
other laws affecting creditors' rights generally and except to the extent
enforceability may be limited by general equitable principles. Each Investor
entered into and is bound by this Agreement in satisfaction of a commitment
made by such Investor to purchase Preferred Stock.
4.3 Non-Contravention. The execution and delivery of this
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Agreement by each Investor does not, and the consummation by such Investor of
the transactions contemplated hereby and the performance by such Investor of
the obligations which it is obligated to perform hereunder will not, (a)
violate any provision of the articles of association, by-laws, agreement of
limited partnership or other organizational documents of such Investor, (b)
violate in any material respect any material law, regulation, rule, order,
judgment or decree to which such Investor is subject, (c) violate in any
material respect, result in the termination or the acceleration of, or
conflict with in any material respect or constitute a material default under,
any material mortgage, indenture, lease, franchise, license, permit,
agreement or instrument (each, a "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.
4.4 Consents, Approvals and Notices. The execution and
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delivery of this Agreement by each Investor and the consummation by each
Investor of the transactions contemplated hereby does not require any (a)
material consent, authorization, order or approval of, filing or registration
with, or notice to, any governmental or regulatory authority, which has not
otherwise been obtained 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 otherwise
obtained.
4.5 Litigation. There is no action, suit or proceeding pending
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or, to the knowledge of any Investor, threatened, before any court against
such Investor which challenges the validity or the propriety of the
transactions contemplated by this Agreement.
4.6 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 Warrants and the Underlying 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
Warrants or Underlying Securities 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 Warrants or Underlying Shares in violation of applicable
federal and state securities laws.
(b) Each Investor understands that the Warrants and Underly-
ing Shares have not been registered under the Securities Act on the
basis that the sale provided for in this Agreement and the issuance of
securities hereunder are exempt from registration under the Securities
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 Securities 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 acquisition of
Warrants or purchase of Underlying Shares, to the same kind of informa-
tion that is specified in Part I of a registration statement under the
Securities Act, and that it has had the opportunity to ask questions of,
and receive answers from, the Company 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 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, 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 Warrants or the Underlying Shares without
registration under the Securities Act and applicable state securities
laws, or an exemption therefrom. Each Investor understands that, in the
absence of an effective registration statement covering the Warrants or
the Underlying Shares or an available exemption from registration under
the Securities Act and applicable state securities laws, the Warrants or
Underlying Shares must be held indefinitely. In particular, each
Investor acknowledges that it is aware that the Warrants and Underlying
Shares may not be sold pursuant to Rule 144 promulgated under the
Securities 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 Company.
Each Investor represents that, in the absence of an effective
registration statement covering the Warrants or Underlying Shares or an
exemption from the Securities Act, it will sell, transfer or otherwise
dispose of the Warrants and Underlying 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 1.
(e) Each Investor represents that it (i) is capable of
bearing the economic risk of holding the unregistered Warrants or
Underlying 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) under-
stands all risk factors related to the Warrants or Underlying Shares.
(f) Each Investor understands that the Warrants and the
Underlying Shares involves a high degree of risk, that there is no
established market for the Warrants or Underlying Shares and that it is
not likely that any public market for the Warrants 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 Warrants and Underlying 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 1, each Investor agrees that it will
not transfer, dispose of or pledge any of the Warrants or Underlying
Shares other than pursuant to an effective registration statement under
the Securities 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 Institutional
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 Warrants or Underlying
Shares under the Securities Act and applicable state securities laws.
(i) Legends; Stop Transfer.
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i. Each Investor acknowledges that all stock certificates
issues pursuant to the exercise of the Warrants 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."
ii. Each Investor acknowledges that all certificates repre-
senting Warrants shall bear the following legend:
"TRANSFER RESTRICTED
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THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMEND
ED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH.
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
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."
iii. In addition, the Company shall make a notation regarding
the restrictions on transfer of the Warrants and Underlying Shares in
its stock books, and the Warrants and Underlying Shares shall be
transferred on the books of the Company only if transferred or sold
pursuant to an effective registration statement under the Securities Act
and applicable state securities laws covering such Warrants or
Underlying Shares or pursuant to and in compliance with the provisions
of Section 4.6(h) hereof. 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.
4.7 Brokers. No broker, investment banker, financial advisor
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or other person or entity is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or on behalf of any Investor or any of its affiliates.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each Investor that:
5.1 Organization and Standing. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to
carry on its business as now conducted and as proposed to be conducted.
5.2 Capitalization. The authorized capital of the Company,
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as of the Merger, will consist of 50,000,000 shares of Common Stock, par
value $.01 per share, 15,000,000 shares of Preferred Stock, par value $.01
per share of which 500,000 shares are designated Series A Junior
Participating Preferred Stock, par value $.01 per share. As
of the close of business on January 20, 1998, 20,356,764 shares of the
Company's Common Stock were issued and outstanding, and no such shares were
held in treasury. The Company 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
following the Merger, there will not be, any existing options, warrants,
calls, subscriptions, or other rights, or other agreements or commitments,
obligating the Company to issue, transfer or sell any shares of capital stock
of the Company or any of its subsidiaries.
5.3 Authorization. All corporate action on the part of the
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Company necessary for the authorization, execution, delivery and performance
of this Agreement by the Company and for the authorization, issuance and
delivery of the Shares being sold under this Agreement, has been taken. This
Agreement, when executed and delivered by all parties hereto, shall
constitute the valid and legally binding obligation of the Company and shall
be enforceable against the Company in accordance with its terms, except to
the extent enforceability may be limited by bankruptcy laws, insolvency laws,
reorganization laws, moratorium laws or other laws affecting creditors'
rights generally and except to the extent enforceability may be limited by
general equitable principles.
5.4 Securities Act. The sale of Warrants in accordance
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with the terms of this Agreement (assuming the accuracy of the
representations and warranties of the Investors contained in Section 4) is
exempt from the registration requirements of the Securities Act.
5.5 Non-Contravention. The execution and delivery of this
-------------------
Agreement by each 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 Contract to which the Company 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 the Company
or the loss of any material license or other material contractual right with
respect thereto.
5.6 Consents, Approvals and Notices. The execution and
-------------------------------
delivery of this Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby does not require any (a) material
consent, authorization, order
or approval of, filing or registration with, or notice to, any governmental
or regulatory authority, which has not otherwise been obtained 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 otherwise obtained.
5.7 Litigation. There is no action, suit or proceeding pending
----------
or, to the knowledge of the Company, threatened, before any court against the
Company which challenges the validity or the propriety of the transactions
contemplated by this Agreement.
6. RIGHTS OF HOLDERS.
Each Holder hereby agrees that if such Holder is not a party to the
Investors' Agreement, then such Holder will take all necessary and
appropriate steps to become a party to the Investors' Agreement. For this
purpose, the Warrants and such Underlying Shares shall be subject to the
restrictions, and entitled to the benefits, to the extent provided in the
Investors' Agreement with respect to Shares held by a "Shareholder" (as
defined in the Investors' Agreement).
7. ADJUSTMENTS.
7.1. Stock Dividend and Distributions; Stock Splits;
-----------------------------------------------
Reverse Stock Splits; Reclassifications. In this case the Company shall
---------------------------------------
(i) pay a dividend or make any other distribution with respect to its Shares
in shares of its capital stock, (ii) subdivide its outstanding Shares, (iii)
combine its outstanding Shares into a smaller number of shares, (iv) issue
any shares of its capital stock in a reclassification of the Shares
(including any such reclassification in connection with a merger,
consolidation or other business combination in which the Company is the
surviving corporation) or (v) in the event the Company shall merge, combine
or engage in a share exchange or similar corporate transaction with any other
entity in which the Company is not the surviving corporation, the number of
Shares issuable upon exercise of each Warrant immediately prior to the record
date for such dividend or distribution or the effective date of such
subdivision, combination, reclassification or other transaction shall be
adjusted so that the Holder of each Warrant shall thereafter be entitled to
receive the kind and number of Shares or other securities of the Company that
such Holder would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Section 7.1 shall
become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
7.2 Other Dilutive Events. In case any event shall occur
---------------------
as to which the provisions of Section 7.1 are not strictly applicable but the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Agreement in accordance with the essential intent and
principles of such section, then, in each such case, the Company shall
appoint a firm of independent certified public accountants of recognized
national standing (which may be the regular auditors of the Company), which
shall give their opinion upon the adjustment, if any, on a basis consistent
with the essential intent and principles established in Section 7.1 hereto,
necessary to preserve, without dilution, the purchase rights represented by
each Warrant. Upon receipt of such opinion, the Company will promptly mail a
copy thereof to the Holder of each Warrant and shall make the adjustments
described therein.
7.3. Notice of Adjustment. Whenever the number of Shares
--------------------
issuable upon the exercise of a Warrant is adjusted, as herein provided, the
Company shall mail by first class mail, postage prepaid, to each Holder,
notice of such adjustment or adjustments setting forth the number of Shares
or other stock or property issuable upon the exercise of each Warrant after
such adjustment, setting forth a brief statement of the facts requiring such
adjustment and setting forth the computation by which such adjustment was
made.
7.4. Statement on Warrants. Irrespective of any adjustment in
---------------------
the number or kind of shares issuable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrants initially
issuable pursuant to this Agreement.
7.5. Fractional Interest. The Company shall not be required to
-------------------
issue fractional Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
Holder, the number of full Shares which shall be issuable upon such exercise
thereof shall be computed on the basis of the aggregate number of Shares
acquirable on exercise of the Warrants so presented. If any fraction of a
Shares would, except for the provisions of this Section, be issuable on the
exercise of any Warrant (or specified portion thereof), the Company shall pay
an amount in cash calculated by it to be equal to the then current market
value, as determined in good faith by the Company, per Share multiplied by
such fraction computed to the nearest whole cent.
8. WARRANT TRANSFER BOOKS.
The Warrant Certificates shall be issued in registered form only.
The Company shall keep a register at its office in which, subject to such
reasonable regulations as it may prescribe, it shall provide for the
registration of Warrant Certificates and of transfers or exchanges of Warrant
Certificates as herein provided. At the option of the
Holder, Warrant Certificates may be exchanged at such office, and upon
payment of the charges hereinafter provided. Whenever any Warrant
Certificates are so surrendered for exchange, the Company shall execute the
Warrant Certificates that the Holder making the exchange is entitled to
receive. All Warrant Certificates issued upon any registration of transfer
or exchange of Warrant Certificates shall be the valid obligations of the
Company, evidencing the same obligations, and entitled to the same benefits
under this Agreement, as the Warrant Certificates surrendered for such
registration of transfer or exchange. Every Warrant Certificate surrendered
for registration of transfer or exchange shall (if so required by the
Company) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and duly executed by the Holder
thereof or his attorney duly authorized in writing. No service charge shall
be made for any registration of transfer or exchange of Warrant Certificates.
The Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration
of transfer or exchange of Warrant Certificates. Any Warrant Certificate
when duly endorsed in blank shall be deemed negotiable and when a Warrant
Certificate shall have been so endorsed, the Holder thereof may be treated by
the Company and all other persons dealing therewith as the absolute owner
thereof for any purpose and as the Person entitled to exercise the rights
represented thereby, or to the transfer thereof on the register of the
Company, any notice to the contrary notwithstanding; but until such transfer
on such register, the Company may treat the registered Holder thereof as the
owner for all purposes.
9. WARRANT HOLDERS.
9.1. No Voting Rights. Prior to the exercise of the
----------------
Warrants, no Holder of a Warrant Certificate, as such, shall be entitled to
any rights of a stockholder of the Company, including, without limitation,
the right to vote, to consent, to exercise any preemptive right, to receive
any notice of meetings of shareholders for the election of directors of the
Company or any other matter or to receive any notice of any proceedings of
the Company, except as may be specifically provided for herein.
9.2. Right of Action. All rights of action in respect of this
---------------
Agreement are vested in the Holders of the Warrants, and any Holder of any
Warrant, without the consent of the Holder of any other Warrant, may, in such
Holder's own behalf and for such Holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's right to
exercise, exchange or tender for purchase such Holder's Warrants in the
manner provided in this Agreement.
10. COVENANTS.
10.1. Reservation of Shares. The Company covenants that it
---------------------
will at all times reserve and keep available, free from preemptive rights,
out of its authorized but unissued Shares, solely for the purpose of issue
upon exercise of Warrants as herein provided, such number of shares of shares
of Voting Common Stock or Non-Voting Common Stock as shall then be issuable
upon the exercise of all outstanding Warrants. The Company covenants that
all shares of Shares which shall be so issuable shall, upon such issue, be
duly and validly issued and fully paid and nonassessable.
10.2. Determinations by Board of Directors. All
------------------------------------
determinations by the Board of Directors of the Company under the provisions
of this Agreement shall be made in good faith with due regard to the
interests of the Holder of a Warrant, and in accordance with good financial
practice.
11. MISCELLANEOUS.
11.1. Payment of Taxes. The Company shall pay all issuance
----------------
or transfer taxes and similar governmental charges that may be imposed on the
Company in connection with the issuance of the Warrants or any securities
deliverable upon exercise of Warrants with respect thereto. The Company
shall not be required, however, to pay any tax or other governmental charge
imposed in connection with any transfer involved in the issue of any
certificate for Underlying Shares or payment of cash to any Person other than
the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or
governmental charge has been paid or it has been established to the Company's
satisfaction that no such tax or other governmental charge is due.
11.2. Surrender of Certificates. Any Warrant Certificate
-------------------------
surrendered for exercise shall be delivered to the Company, promptly
cancelled and not reissued by the Company. The Company shall destroy such
cancelled Warrant Certificates.
11.3. Mutilated, Destroyed, Lost and Stolen Warrant
---------------------------------------------
Certificates.
------------
(a) If (i) any mutilated Warrant Certificate is surrendered to the
Company or (ii) the Company receives evidence to its satisfaction of the
destruction, loss or theft of any Warrant Certificate, and there is delivered
to the Company such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Company that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute, in exchange for any such mutilated Warrant Certificate or in
lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant
Certificate of like tenor and for a like aggregate number of Warrants.
(b) Upon the issuance of any new Warrant Certificate under this
Section 11.3. the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and other expenses (including the reasonable fees and expenses of
counsel to the Company) in connection therewith.
(c) Every new Warrant Certificate executed and delivered pursuant
to this Section 11.3 in lieu of any destroyed, lost or stolen Warrant
Certificate shall constitute an original contractual obligation of the
Company, whether or not the destroyed, lost or stolen Warrant Certificate
shall be at any time enforceable by anyone, and shall be entitled to the
benefits of this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder.
(d) The provisions of this Section 11.3 are exclusive and shall
preclude (to the extent lawful) all other rights or remedies with respect to
the replacement of mutilated, destroyed, lost or stolen Warrant Certificates.
11.4 Notices. All notices and other communications necessary or
-------
contemplated under this Agreement shall be in writing and shall be delivered
in the manner specified herein. All notices shall be deemed to have been
duly given upon confirmation by telecopy if delivered by telecopy or by hand,
or one day after sending by overnight delivery service, or five days after
sending by certified mail, postage prepaid, return receipt requested to the
respective addresses of the parties set forth below:
i. for notices and communications to the Company:
Xxxxxx Scientific International Inc.
Xxxxxxx Xxxx
Xxxxxxx, X.X. 00000
Fax: (000) 000-0000
Attention: Xxxx XxXxxxx, Esq.
ii. for notices and communications to (i) each Institutional
Investor, to its address as set forth under each Institutional
Investor's name in Exhibit A, and (ii) each
---------
Individual Investor as set forth in Exhibit B hereto, to his attention in
care of Xxxxxx X. Xxx Company, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
By notice complying with the foregoing provisions of this Section 11.4, each
party shall have the right to change the notice address for future notices
and communications to such party.
11.5. Applicable Law. This Agreement and each Warrant
--------------
issued hereunder and all rights arising hereunder shall be governed by the
laws of the State of Delaware.
11.6. Persons Benefitting. This Agreement shall be binding
-------------------
upon and inure to the benefit of the Company and its respective successors,
assigns, beneficiaries, executors and administrators, and the Holders from
time to time of the Warrants. Nothing in this Agreement is intended or shall
be construed to confer upon any Person, other than the Company and the
Holders of the Warrants, any right, remedy or claim under or by reason of
this Agreement or any part hereof.
11.7. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same instrument.
11.8. Amendments. The Company may, without the consent of
----------
the Holders of the Warrants, by supplemental agreement or otherwise, make any
changes or corrections in this Agreement that it shall have been advised by
counsel (a) are required to cure any ambiguity or to correct or supplement
any provision herein which may be defective or inconsistent with any other
provision herein or (b) add to the covenants and agreements of the Company
for the benefit of the Holders, or surrender any rights or power reserved to
or conferred upon the Company in this Agreement; provided that, in each case,
such changes or corrections shall not --------
adversely affect the interests of the Holders in any material respect.
11.9. Headings. The descriptive headings of the several
--------
Sections of this Agreement are inserted for convenience and shall not control
or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duty executed, as of the day and year first above written.
XXXXXX SCIENTIFIC INTERNATIONAL INC.
By: /s/ Xxxx X. XxXxxxx
--------------------------------------------
Name: Xxxx X. XxXxxxx
Title: Vice President - General Counsel
and Secretary
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-CCI LIMITED PARTNERSHIP
By: THL Investment Management Corp,
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:
DLJ Entities' Shareholders:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ DIVERSIFIED PARTNERS - A, L.P.
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ MILLENNIUM PARTNERS - A, L.P.
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJMB FUNDING II, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
UK INVESTMENT PLAN 1997 PARTNERS
By: Xxxxxxxxx, Lufkin & Xxxxxxxx Inc.,
as general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as general partner
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
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
EXHIBIT A -- INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT
---------
NUMBER OF WARRANTS ACQUIRED BY EACH INSTITUTIONAL INVESTOR
----------------------------------------------------------
Stockholder Warrants to Purchase Warrants to Purchase
Shares of Voting Shares of Non-Voting
Common Stock Common Stock
Xxxxxx X. Xxx Equity Fund III, L.P. 198,268 0
c/o Xxxxxx X. Xxx Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxx X. Xxx Foreign Fund III, L.P. 12,268 0
c/o Xxxxxx X. Xxx Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THL FSI Equity Investors, L.P. 99,614 0
c/o Xxxxxx X. Xxx Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THL-CCI Limited Partnership 12,209 0
c/o Xxxxxx X. Xxx Co.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
DLJ Merchant Banking Partners II, L.P. 62,749 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Merchant Banking Partners II-A, L.P. 2,499 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Offshore Partners II, C.V. 3,086 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Diversified Partners, L.P. 3,669 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Diversified Partners - A, L.P. 1,362 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Millennium Partners, L.P. 1,015 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ Millennium Partners - A, L.P. 198 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ MB Funding II, Inc. 11,140 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
UK Investment Plan 1997 Partners 1,660 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ EAB Partners, L.P. 282 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ ESC II, L.P. 11,833 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
DLJ First ESC, L.P. 121 0
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Chase Equity Associates, L.P. 0 66,409
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx KECALP L.P. 1997 16,019 0
KECALP Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Common Stock
KECALP Inc. 3,051 0
c/o KECALP Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
ML IBK Positions, Inc. 853 0
Xxxxxx X. Xxxxxxx
c/o ML IBK Positions, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
____________ ___________
TOTAL 441,896 66,409
______
EXHIBIT B --INVESTORS COMMON STOCK WARRANT ACQUISITION AGREEMENT//
_________
Stockholder Warrants to
----------- Purchase Shares of Voting
Common Stock
-----------------
Xxxxx X. Xxxxxxx 1,481
The 1995 Harkins Gift Trust 165
Xxxxxx X. Xxxxxxxx Money Purchase Pension Plan (Xxxxx 514
Xxxxx X. Xxxxxx 987
X. Xxxxxx Xxxx 987
Xxxxx X. Xxxxxxxx 494
Xxxxxxxx Family Limited Partnership 329
Xxxxxxx X. XxXxxx 823
Xxxxxx X. Xxxxxxx 823
Xxxxxx X. Xxxxx, Xx. 823
Xxxx X. Xxxxx 247
Xxxxxx X. Xxxxxxxxx 206
Xxxx X. Xxxxxx 123
Xxxxxxxx X. Xxxxxx 62
Xxxx X. Xxxxxxxx 00
Xxxxx X. Xxxxxx 34
Xxxxxx X. Xxxxxxx 34
First Trust Co. FBO Xxxxxxxx X. Xxxxx 00
Xxxxxxx X. Xxxxxx 34
Xxxxx Xxxxxx 34
Xxxxxxx X. Xxxxxxx 62
----
TOTAL 8,358
_____
EXHIBIT C
TRANSFER RESTRICTED
-------------------
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
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.
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
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.
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE SHARES
OF XXXXXX SCIENTIFIC INTERNATIONAL INC.
VOTING COMMON STOCK
No. Certificate for __ Warrants
---------
This certifies that , or registered assigns,
-----------------
is the registered holder of the number of Warrants set forth above. Each
Warrant entitles the holder thereof (a "Holder"), subject to the provisions
contained herein and in the Common Stock Warrant Acquisition Agreement
referred to below, to receive from Xxxxxx Scientific International Inc., a
Delaware corporation (the "Company"), one share of Voting Common Stock, par
value $0.01 per share ("Voting Common Stock"), of the Company ("Shares"), at
the exercise price (the "Exercise Price") of $48.25 per share, subject to
adjustment upon the occurrence of certain events.
This Warrant Certificate is issued under and in accordance with the
Common Stock Warrant Acquisition Agreement, dated as of January 21, 1998 (the
"Warrant Agreement"), between the Company and certain entities and persons
named therein, and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder
of the Company and the Holders of the Warrants. Terms defined in the Warrant
Agreement are used herein as therein defined.
The Warrants represented by this Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of shares of Voting Common Stock
issuable upon the exercise of each Warrant are subject to adjustment as
provided in the Warrant Agreement.
All Shares issuable by the Company upon the exercise of Warrants
shall, upon such issue, be duly and validly issued and fully paid and
nonassessable.
In order to exercise a Warrant, the registered holder hereof must
surrender this Warrant Certificate at the office of the Company, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with any
required payment in full of the Exercise Price then in effect for the
Underlying Shares as to which the Warrant(s) represented by this Warrant
Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and similar
governmental charges that may be imposed on the Company in connection with
the issuance of the Warrants or any securities deliverable upon exercise of
Warrants. The Company shall not be required, however, to pay any tax or
other charge imposed in connection with any transfer involved in the issue of
any certificate for Underlying Shares or payment of cash to any person other
than the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or
other charge has been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
Subject to compliance with the Warrant Agreement, this Warrant
Certificate and all rights hereunder are transferable by the registered
holder hereof, in whole or in part, on the register of the Company, upon
surrender of this Warrant Certificate for registration of transfer at the
office of the Company, duly endorsed by, or accompanied by a written
instrument of transfer substantially in the form of the attached Form of
Assignment or otherwise in a form satisfactory to the Company duly executed
by, the Holder hereof or his attorney duly authorized in writing, with
signature guaranteed. Upon any partial transfer, the Company will issue and
deliver to such holder a new Warrant Certificate or Certificates with respect
to any portion not so transferred.
No service charge shall be made for any registration of transfer or
exchange of the Warrant Certificates, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Each Holder of this Warrant Certificate by taking or holding the
same consents and agrees that this Warrant Certificate when duly endorsed in
blank shall be deemed negotiable and that when this Warrant Certificate shall
have been so endorsed, the Holder hereof may be treated by the Company and
all other Persons dealing with this Warrant Certificate as the absolute owner
hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, or to the transfer hereof on the register of the Company
maintained by a Warrant agent, any notice to the contrary notwithstanding,
but until such transfer on such register, the Company may treat the
registered Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined herein
that are defined in the Warrant Agreement shall have the meanings assigned to
them in the Warrant Agreement.
Dated: 1998
-----------------
XXXXXX SCIENTIFIC INTERNATIONAL INC.
By:_____________________________
Name:
----------------------
Title:
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: XXXXXX SCIENTIFIC INTERNATIONAL INC.
The undersigned irrevocably exercises of the
-----------
Warrants for the acquisition of one share of Voting Common Stock (subject to
adjustment), par value $0.01 per share, of Xxxxxx Scientific International
Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and
herewith makes payment of $____ (such payment being in cash or by certified
or official bank check payable to the order of Xxxxxx Scientific
International Inc.), all at the Exercise Price and on the terms and
conditions specified in this Warrant Certificate and the Common Stock Warrant
Acquisition Agreement therein referred to, surrenders this Warrant
Certificate and all right, title and interest therein to Xxxxxx Scientific
International Inc. and directs that the Shares deliverable upon the exercise
of such Warrants be registered or placed in the name and at the address
specified below and delivered thereto.
Date: 19__
---------------
_______________________________(1)
(Signature of Owner)
_________________________________
(Xxxxxx Xxxxxxx)
_________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_________________________________
_________________
(1) Signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a
financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
EXHIBIT D
TRANSFER RESTRICTED
-------------------
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
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.
THESE WARRANTS AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF
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.
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE SHARES
OF XXXXXX SCIENTIFIC INTERNATIONAL INC.
NON-VOTING COMMON STOCK
No. Certificate for __ Warrants
---------
This certifies that , or registered assigns,
-----------------
is the registered holder of the number of Warrants set forth above. Each
Warrant entitles the holder thereof (a "Holder"), subject to the provisions
contained herein and in the Common Stock Warrant Acquisition Agreement
referred to below, to receive from Xxxxxx Scientific International Inc., a
Delaware corporation (the "Company"), one share of Non-Voting Common Stock,
par value $0.01 per share ("Non-Voting Common Stock"), of the Company
("Shares"), at the exercise price (the "Exercise Price") of $48.25 per share,
subject to adjustment upon the occurrence of certain events.
This Warrant Certificate is issued under and in accordance with the
Common Stock Warrant Acquisition Agreement, dated as of January 21, 1998 (the
"Warrant Agreement"), between the Company and certain entities and persons
named therein, and is subject to the terms and provisions contained in the
Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder
of the Company and the Holders of the Warrants. Terms defined in the Warrant
Agreement are used herein as therein defined.
The Warrants represented by this Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of shares of Non-Voting Common
Stock issuable upon the exercise of each Warrant are subject to adjustment as
provided in the Warrant Agreement.
All Shares issuable by the Company upon the exercise of Warrants
shall, upon such issue, be duly and validly issued and fully paid and
nonassessable.
In order to exercise a Warrant, the registered holder hereof must
surrender this Warrant Certificate at the office of the Company, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with any
required payment in full of the Exercise Price then in effect for the
Underlying Shares as to which the Warrant(s) represented by this Warrant
Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and similar
governmental charges that may be imposed on the Company in connection with
the issuance of the Warrants or any securities deliverable upon exercise of
Warrants. The Company shall not be required, however, to pay any tax or
other charge imposed in connection with any transfer involved in the issue of
any certificate for Underlying Shares or payment of cash to any person other
than the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or
other charge has been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
Subject to compliance with the Warrant Agreement, this Warrant
Certificate and all rights hereunder are transferable by the registered
holder hereof, in whole or in part, on the register of the Company, upon
surrender of this Warrant Certificate for registration of transfer at the
office of the Company, duly endorsed by, or accompanied by a written
instrument of transfer substantially in the form of the attached Form of
Assignment or otherwise in a form satisfactory to the Company duly executed
by, the Holder hereof or his attorney duly authorized in writing, with
signature guaranteed. Upon any partial transfer, the Company will issue and
deliver to such holder a new Warrant Certificate or Certificates with respect
to any portion not so transferred.
No service charge shall be made for any registration of transfer or
exchange of the Warrant Certificates, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Each Holder of this Warrant Certificate by taking or holding the
same consents and agrees that this Warrant Certificate when duly endorsed in
blank shall be deemed negotiable and that when this Warrant Certificate shall
have been so endorsed, the Holder hereof may be treated by the Company and
all other Persons dealing with this Warrant Certificate as the absolute owner
hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, or to the transfer hereof on the register of the Company
maintained by a Warrant agent, any notice to the contrary notwithstanding,
but until such transfer on such register, the Company may treat the
registered Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined herein
that are defined in the Warrant Agreement shall have the meanings assigned to
them in the Warrant Agreement.
Dated: 1998
-----------------
XXXXXX SCIENTIFIC INTERNATIONAL INC.
By:_____________________________
Name:
Title:
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: XXXXXX SCIENTIFIC INTERNATIONAL INC.
The undersigned irrevocably exercises of the
-----------
Warrants for the acquisition of one share of Non-Voting Common Stock (subject
to adjustment), par value $0.01 per share, of Xxxxxx Scientific International
Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and
herewith makes payment of $____ (such payment being in cash or by certified
or official bank check payable to the order of Xxxxxx Scientific
International Inc.), all at the Exercise Price and on the terms and
conditions specified in this Warrant Certificate and the Common Stock Warrant
Acquisition Agreement therein referred to, surrenders this Warrant
Certificate and all right, title and interest therein to Xxxxxx Scientific
International Inc. and directs that the Shares deliverable upon the exercise
of such Warrants be registered or placed in the name and at the address
specified below and delivered thereto.
Date: 19__
---------------
_______________________________(1)
(Signature of Owner)
_________________________________
(Xxxxxx Xxxxxxx)
_________________________________
(City) (State) (Zip
Code)
Signature Guaranteed by:
_________________________________
_________________
(1) Signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a
financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the
enclosed Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any
Warrants constituting a part of the Warrants evidenced by the enclosed
Warrant Certificate not being assigned hereby) all of the rights of the
undersigned under the enclosed Warrant Certificate, with respect to the
number of Warrants set forth below:
SOCIAL SECURITY
OR OTHER
IDENTIFYING
NAME OF NUMBER OF NAME OF
ASSIGNEES ADDRESS ASSIGNEE(S) WARRANTS
--------- ------- --------------- --------
and does hereby irrevocably constitute and appoint Xxxxxx Scientific
International Inc. the undersigned's attorney to make such transfer on the
books of Xxxxxx Scientific International Inc. maintained for that purpose,
with full power of substitution in the premises.
Date: 19__
---------------
___________________________________________________
(Signature of Owner)
_____________________________
(Xxxxxx Xxxxxxx)
_____________________________
(City) (State) (Zip Code)
SIGNATURE GUARANTEED BY:
_____________________________
(1) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever.
