EXHIBIT 5
XXXXXX SCIENTIFIC INTERNATIONAL INC.
COMMON STOCK WARRANT ACQUISITION AGREEMENT
Dated as of January 21, 1998
TABLE OF CONTENTS
Page
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
Agreement and its successors and assigns.
Exercise Price: the meaning set forth in Section 3.1.
Expiration Date: the tenth anniversary of this Agreement.
Holders: from time to time, the holders of the Warrants and,
unless otherwise provided or indicated herein, the holders of the
Underlying Shares.
Investors: the meaning set forth in the preamble to this
Agreement.
Investors' Agreement: the Investors' Agreement, dated as of
even date herewith, by and among the Company, the Investors and certain
other parties named therein.
Person: any individual, corporation, partnership, joint
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.
Shares: the meaning set forth in Article I of the Investors'
Agreement.
Underlying Shares: the shares of Common Stock issuable or
issued upon the exercise of the Warrants.
Warrant Certificates: the meaning set forth in the preamble
to this Agreement.
Warrants: the meaning set forth in the preamble to this
Agreement.
2. ORIGINAL ISSUE OF WARRANTS.
2.1. Form of Warrant Certificates. The Warrant 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
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 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 exercisable
in whole or in part on or prior to the Expiration Date.
3.3. Expiration of Warrants. The Warrants shall terminate and
become void at the close of business on the Expiration Date.
3.4. Method of Exercise.
(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 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
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
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
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 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.
(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
Underlying 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 information 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)
understands 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.
i. Each Investor acknowledges that all stock
certificates issues pursuant to the exercise of the Warrants 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."
ii. Each Investor acknowledges that all certificates
representing Warrants shall bear the following legend:
"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."
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
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
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, 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
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 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
Warrants to Purchase Warrants to Purchase
Shares of Voting Shares of Non-Voting
Stockholder 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
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)
---------------------------------
(Street Address)
---------------------------------
(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)
---------------------------------
(Street Address)
---------------------------------
(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__ ____________________________ (1)
(Signature of Owner)
-----------------------------
(Street Address)
-----------------------------
(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.
