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