XXXXXX SCIENTIFIC INTERNATIONAL INC.
COMMON STOCK WARRANT ACQUISITION AGREEMENT
Dated as of January 21, 1998
TABLE OF CONTENTS
Page
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PARTIES............................................................... 4
1. DEFINITIONS
2. ORIGINAL ISSUE OF WARRANTS
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
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
4.1 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
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
7. ADJUSTMENTS
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
9. WARRANT HOLDERS
9.1. No Voting Rights............................................... 11
9.2. Right of Action................................................ 11
10. COVENANTS
10.1. Reservation of Shares.......................................... 12
10.2. Determinations by Board of Directors........................... 12
11. MISCELLANEOUS
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' Agree anuary 21, 1998, as amended
from time to time, and none of such securities or any
interest therein, shall be transferred, pledged, rwise
disposed of except as provided in that Agreement. A ors'
Agreement is on file with the Secretary of the Company 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)
_________________________________
(Xxxxxx Xxxxxxx)
_________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_________________________________
------------
(1) Signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever, and must be guaranteed by a
financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
EXHIBIT D
TRANSFER RESTRICTED
-------------------
These warrants and the securities issuable upon the exercise
hereof have not been registered under the Securities Act of
1933, as amended, or any state Securities Laws and may not be
offered or sold except in compliance therewith.
These warrants and the securities issuable upon the exercise
hereof are subject to the terms and conditions, including
certain restrictions on transfer, of an Investors' Agreement
dated as of January 21, 1998, as amended from time to time,
and none of such securities, or any interest therein, shall
be transferred, pledged, encumbered or otherwise disposed of
except as provided in that Agreement. A copy of the
Investors' Agreement is on file with the Secretary of the
Company and will be mailed to any properly interested person
without charge within five (5) days after receipt of a
written request.
FORM OF FACE OF WARRANT CERTIFICATE
WARRANTS TO PURCHASE SHARES
OF XXXXXX SCIENTIFIC INTERNATIONAL INC.
NON-VOTING COMMON STOCK
No. ____ Certificate for __ Warrants
This certifies that ________________, or registered
assigns, is the registered holder of the number of Warrants set forth above.
Each Warrant entitles the holder thereof (a "Holder"), subject to the
provisions contained herein and in the Common Stock Warrant Acquisition
Agreement referred to below, to receive from Xxxxxx Scientific International
Inc., a Delaware corporation (the "Company"), one share of Non-Voting Common
Stock, par value $0.01 per share ("Non-Voting Common Stock"), of the Company
("Shares"), at the exercise price (the "Exercise Price") of $48.25 per share,
subject to adjustment upon the occurrence of certain events.
This Warrant Certificate is issued under and in accordance
with the Common Stock Warrant Acquisition Agreement, dated as of January 21,
1998 (the "Warrant Agreement"), between the Company and certain entities and
persons named therein, and is subject to the terms and provisions contained in
the Warrant Agreement, to all of which terms and provisions the Holder of this
Warrant Certificate consents by acceptance hereof. The Warrant Agreement is
hereby incorporated herein by reference and made a part hereof. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder
of the Company and the Holders of the Warrants. Terms defined in the Warrant
Agreement are used herein as therein defined.
The Warrants represented by this Warrant Certificate shall be
exercisable prior to the close of business on the Expiration Date.
The Exercise Price and the number of shares of Non-Voting
Common Stock issuable upon the exercise of each Warrant are subject to
adjustment as provided in the Warrant Agreement.
All Shares issuable by the Company upon the exercise of
Warrants shall, upon such issue, be duly and validly issued and fully paid and
nonassessable.
In order to exercise a Warrant, the registered holder hereof
must surrender this Warrant Certificate at the office of the Company, with the
Exercise Subscription Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with any
required payment in full of the Exercise Price then in effect for the
Underlying Shares as to which the Warrant(s) represented by this Warrant
Certificate are submitted for exercise, all subject to the terms and
conditions hereof and of the Warrant Agreement. Any such payment of the
Exercise Price shall be in accordance with Section 3.4(a) of the Warrant
Agreement.
The Company shall pay all issuance and transfer taxes and
similar governmental charges that may be imposed on the Company in connection
with the issuance of the Warrants or any securities deliverable upon exercise
of Warrants. The Company shall not be required, however, to pay any tax or
other charge imposed in connection with any transfer involved in the issue of
any certificate for Underlying Shares or payment of cash to any person other
than the Holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and in case of such transfer or payment, the Company shall not be
required to issue any stock certificate or pay any cash until such tax or other
charge has been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
Subject to compliance with the Warrant Agreement, this
Warrant Certificate and all rights hereunder are transferable by the
registered holder hereof, in whole or in part, on the register of the Company,
upon surrender of this Warrant Certificate for registration of transfer at the
office of the Company, duly endorsed by, or accompanied by a written
instrument of transfer substantially in the form of the attached Form of
Assignment or otherwise in a form satisfactory to the Company duly executed
by, the Holder hereof or his attorney duly authorized in writing, with
signature guaranteed. Upon any partial transfer, the Company will issue and
deliver to such holder a new Warrant Certificate or Certificates with respect
to any portion not so transferred.
No service charge shall be made for any registration of
transfer or exchange of the Warrant Certificates, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Each Holder of this Warrant Certificate by taking or holding
the same consents and agrees that this Warrant Certificate when duly endorsed
in blank shall be deemed negotiable and that when this Warrant Certificate
shall have been so endorsed, the Holder hereof may be treated by the Company
and all other Persons dealing with this Warrant Certificate as the absolute
owner hereof for any purpose and as the Person entitled to exercise the rights
represented hereby, or to the transfer hereof on the register of the Company
maintained by a Warrant agent, any notice to the contrary notwithstanding, but
until such transfer on such register, the Company may treat the registered
Holder hereof as owner for all purposes.
This Warrant Certificate and the Warrant Agreement are
subject to amendment as provided in the Warrant Agreement.
All terms used in this Warrant Certificate and not defined
herein that are defined in the Warrant Agreement shall have the meanings
assigned to them in the Warrant Agreement.
Dated: ___________ 1998
XXXXXX SCIENTIFIC INTERNATIONAL INC.
By:
------------------------------
Name:
Title:
FORM OF REVERSE OF WARRANT CERTIFICATE
EXERCISE SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: XXXXXX SCIENTIFIC INTERNATIONAL INC.
The undersigned irrevocably exercises _____________ of the
Warrants for the acquisition of one share of Non-Voting Common Stock (subject
to adjustment), par value $0.01 per share, of Xxxxxx Scientific International
Inc. (a "Share"), for each Warrant represented by the Warrant Certificate and
herewith makes payment of $____ (such payment being in cash or by certified or
official bank check payable to the order of Xxxxxx Scientific International
Inc.), all at the Exercise Price and on the terms and conditions specified in
this Warrant Certificate and the Common Stock Warrant Acquisition Agreement
therein referred to, surrenders this Warrant Certificate and all right, title
and interest therein to Xxxxxx Scientific International Inc. and directs that
the Shares deliverable upon the exercise of such Warrants be registered or
placed in the name and at the address specified below and delivered thereto.
Date: __________ 19__
_______________________________(1)
(Signature of Owner)
_________________________________
(Xxxxxx Xxxxxxx)
_________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
_________________________________
------------
(1) Signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever, and must be guaranteed by a
financial institution satisfactory to the Company.
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
Any unexercised Warrants evidenced by the within Warrant Certificate to be
issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered holder of the
enclosed Warrant Certificate hereby sells, assigns, and transfers unto the
Assignee(s) named below (including the undersigned with respect to any
Warrants constituting a part of the Warrants evidenced by the enclosed Warrant
Certificate not being assigned hereby) all of the rights of the undersigned
under the enclosed Warrant Certificate, with respect to the number of Warrants
set forth below:
Social Security
or Other
Identifying
Name of Number of Name of
Assignees Address Assignee(s)_ Warrants
--------- ------- ------------ --------
and does hereby irrevocably constitute and appoint Xxxxxx Scientific
International Inc. the undersigned's attorney to make such transfer on the
books of Xxxxxx Scientific International Inc. maintained for that purpose,
with full power of substitution in the premises.
Date: __________ 19__
_____________________________(1)
(Signature of Owner)
_____________________________
(Xxxxxx Xxxxxxx)
_____________________________
(City) (State) (Zip Code)
Signature Guaranteed By:
_____________________________
(1) The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration
or enlargement or any change whatever.