SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 13, 1995
VWR CORPORATION
(Exact name of registrant as specified in its charter)
Pennsylvania 0-14139 91-1319190
(State or other jurisdiction (Commission) (IRS Employer
of incorporation) File Number) Identification No.)
1310 Goshen Parkway, West Chester, PA 19380
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (610) 431-1700
N/A
(Former name or former address, if changed since last report)
Item 5. Other Events
On April 13, 1995, VWR Corporation (the "Company") issued
1,818,181 of its Common Shares, and a warrant to purchase an
additional 967,015 Common Shares, to EM Industries, Incorporated
("EM"), an affiliate of E. Merck of Darmstadt, Germany. The
aggregate purchase price for the 1,818,181 Common Shares and the
warrant was $20 million. The warrant is exercisable at $11.00 per
share until April 13, 1998. In connection with this investment in
the Company EM entered into a four-year "standstill" agreement with
the Company which limits its ability to increase its equity interest
in the Company and the Company agreed to elect two representatives of
EM to its Board of Directors. In addition the two companies entered
into new distribution agreements encompassing the U.S. and Canadian
markets.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c) Exhibits
4. Instruments Defining the Right of Security
Holders.
(a) Standstill Agreement between VWR Corporation
and EM Industries, Incorporated dated February 27,
1995
(b) Warrant to Purchase Common Shares of VWR
Corporation dated April 13, 1995
10. Material Contracts.
Common Share and Warrant Purchase Agreement
between VWR Corporation and EM Industries,
Incorporated dated February 27, 1995
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
VWR CORPORATION
Date: April 19, 1995 By: (Signature)
Walter S. Sobon
Vice President Finance
EXHIBIT INDEX
Exhibit No. Title
4(a) Standstill Agreement between
VWR Corporation and EM Industries,
Incorporated dated
February 27, 1995
4(b) Warrant to Purchase Common
Shares of VWR Corporation
dated April 13, 1995
10 Common Share and Warrant Purchase
Agreement between VWR Corporation
and EM Industries, Incorporated
dated February 27, 1995
___________________________________________________________
STANDSTILL AGREEMENT
____________________________________________________________
by and between
VWR CORPORATION
and
EM INDUSTRIES, INCORPORATED
February 27, 1995
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS 2
1.1 Act 2
1.2 Affiliate 2
1.3 Affiliated Director 2
1.4 Assignee 2
1.5 Board 2
1.6 Business Day 2
1.7 Commission 2
1.8 Common Share and Warrant Purchase Agreement 2
1.9 Common Stock 2
1.10 Common Stock Equivalents 2
1.11 Effective Date 3
1.12 Exchange Act 3
1.13 Holder 3
1.14 Investment Banking Firm 3
1.15 Market Disposition Program 3
1.16 Notice of Exercise 3
1.17 Notice of Issue 3
1.18 Notice of Proposed Sale 3
1.19 Percentage Limitation 3
1.20 Permitted Percentage 3
1.21 Person 4
1.22 Principal Trading Market 4
1.23 Private Sale 4
1.24 Purchaser 4
1.25 Purchaser Affiliate 4
1.26 Registrable Securities 4
1.27 Registration Expenses 4
1.28 Restriction Termination Date 4
1.29 Selling Expenses 4
1.30 Twenty Day Average 4
1.31 Unaffiliated Director 4
1.32 Voting Securities 4
1.33 13D Group 4
ARTICLE 2. RESTRICTIONS ON ACQUISITION OF ADDITIONAL SHARES BY
PURCHASER 5
2.1 No Purchases Before Effective Date. 5
2.2 No Purchases Beyond Percentage Limitation 5
2.3 Permitted Purchase Due to Increases in Common Stock
Equivalents 5
2.4 Procedures Concerning Purchaser's Acquisition of
Shares From Company in Response to Increases in
Common Stock Equivalents 5
2.5 Limitation on Purchaser's Right to Purchase Common
Stock Pursuant to Section 2.3 in the Event of a
Business Acquisition by Company. 6
2.6 Permitted Purchase If Company Proposes to Issue
Voting Securities for Cash 7
2.7 Permitted Purchase in Response To Third Party Tender
Offer or Exchange Offer 8
2.8 Permitted Purchase With Board Approval 9
2.9 Permitted Purchase by 100% Tender Offer After Four
Years 9
2.10 Requirements for Tender Offers 9
2.11 Mandatory Disposal of Excess Shares 10
2.12 Monthly Report of Ownership 10
2.13 General Rule Regarding Acquisition of Voting
Securities 10
2.14 Requirements of Trading Exchange or Stock Quotation
System 11
ARTICLE 3. SALES OF SHARES BY PURCHASER AND RELATED RIGHTS AND
OBLIGATIONS OF PURCHASER AND COMPANY 11
3.1 General Restrictions on Resale or Other Disposition
11
3.2 Allowed Sales Pursuant to Registration Rights 11
3.3 Allowed Sales Pursuant to Rule 144 11
3.4 Allowed Private Sales to Third Parties or Pursuant to
Tender Offer 11
3.5 Allowed Transfers by EMI and Purchaser Affiliates 12
3.6 Allowed Transfers Upon Approved Business Disposition
12
3.7 Right of First Refusal 12
3.8 Procedures for Right of First Refusal 12
3.9 Purchaser's Covenants With Respect to Distribution of
Shares 15
3.10 Company's Undertaking to Cooperate in Rule 144
Transactions 15
ARTICLE 4. LEGENDS AND STOP TRANSFER ORDERS 15
4.1 Placement of Legends and Entry of Stop Transfer
Orders 15
4.2 Removal of Legends and Stop Transfer Orders 16
ARTICLE 5. CERTAIN AGREEMENTS OF PURCHASER AND COMPANY 16
5.1 Future Actions 16
5.2 Acquisitions and Transfers in Contravention of
Agreement 17
5.3 Company's Issuance of Securities 17
ARTICLE 6. BOARD OF DIRECTORS 17
6.1 Size of Board 17
6.2 Terms 17
6.3 Vacancies 18
6.4 Proportional Representation 18
ARTICLE 7. REGISTRATION RIGHTS 19
7.1 Duration of Registration Rights 19
7.2 Demand Registration Covenant 19
7.3 Participation Registration Covenant 20
7.4 Company's Obligations in Connection with
Registrations 21
7.5 Conditions to Obligations of Company Under
Registration Covenants 22
7.6 Expenses 24
7.7 Assignability of Registration Rights 25
7.8 Indemnification 25
ARTICLE 8. TERMINATION 28
8.1 Termination 28
8.2 Extended Cure Period 28
ARTICLE 9. REPRESENTATIONS AND WARRANTIES 29
9.1 Of Company 29
9.2 Of EMI 29
ARTICLE 10. MISCELLANEOUS 30
10.1 Specific Enforcement 30
10.2 Severability 30
10.3 Expenses 30
10.4 Assignment; Successors 30
10.5 Amendments 31
10.6 Notices 31
10.7 Attorneys' Fees 32
10.8 Integration 32
10.9 Waivers 32
10.10 Governing Law 32
10.11 Counterparts 32
10.12 Cooperation 33
10.13 Section Headings and Captions 33
STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (the "Agreement") is made this
27th day of February, 1995, by and between VWR CORPORATION, a
Pennsylvania corporation ("Company") and EM Industries, Incorporated,
a New York corporation ("EMI").
RECITALS
A. Company and EMI have entered into a Common Share and
Warrant Purchase Agreement pursuant to which, among other things,
Company shall issue and sell to EMI Common Stock (as defined below)
of Company and a common share purchase warrant (the "Warrant").
B. The parties seek to regulate the acquisition and
disposition by Purchaser (as defined below) of Company's Voting
Securities, provide for EMI representation on Company's Board, and
generally foster a constructive and mutually beneficial relationship.
C. EMI and Company acknowledge that Company has made,
prior to the date hereof, a careful evaluation of Purchaser's
investment objectives with regard to its ownership of Voting
Securities, and the compatibility of Purchaser's management and
objectives with the management and objectives of Company; that such
factors were critical to Company in its decision to enter into this
Agreement; that, absent the provisions of Articles 2 through 4
hereof, Purchaser's ownership of Voting Securities would present an
unusual opportunity for it to gain effective control of Company and
Company might have reached a different decision with regard to
entering into this Agreement and the Common Share and Warrant
Purchase Agreement; that, therefore, the provisions of Articles 2
through 4 were a material inducement to Company to enter into this
Agreement and the Common Share and Warrant Purchase Agreement; and,
that the primary purposes of Articles 2 through 4 are that, so long
as such provisions remain in effect and except as permitted by such
provisions, the Voting Securities owned by Purchaser not come to rest
in the hands of any single holder or group of holders other than
Purchaser, and Purchaser's ownership of Voting Securities not be
increased, other than as provided for in this Agreement or with the
consent of Company. EMI acknowledges that such purposes are
reasonable and that the provisions of Articles 2 through 4 are
reasonable in view of such purposes.
NOW, THEREFORE, in consideration of the mutual agreements
and covenants set forth herein and in the Common Share and Warrant
Purchase Agreement, and for other good and valuable consideration,
the parties agree as follows:
ARTICLE 1. DEFINITIONS
As used in this Agreement, in addition to other terms
defined elsewhere herein, the following terms have the respective
meanings set forth below:
1.1 Act. "Act" means the Securities Act of 1933, as
amended.
1.2 Affiliate. "Affiliate" means any Person directly or
indirectly controlled by, controlling or under common control with
another Person. For purposes of this definition, "control" means the
power to direct the management or policies of the Person in question.
1.3 Affiliated Director. "Affiliated Director" means any
member of the Board who has been designated by EMI under Article 6
for nomination or appointment as a director of Company.
1.4 Assignee. See Section 10.4.
1.5 Board. "Board" means the Board of Directors of
Company as constituted from time to time.
1.6 Business Day. "Business Day" means any Monday
through Friday, inclusive, excluding any such day which is a Federal
or Commonwealth of Pennsylvania holiday.
1.7 Commission. "Commission" means the Securities and
Exchange Commission of the United States.
1.8 Common Share and Warrant Purchase Agreement. "Common
Share and Warrant Purchase Agreement" means the Common Share and
Warrant Purchase Agreement, dated February 27, 1995, between Company
and EMI.
1.9 Common Stock. "Common Stock" means the common shares
of Company, par value $1.00 per share or such other par value as may
be established from time to time.
1.10 Common Stock Equivalents. "Common Stock Equivalents"
means the sum of the following, determined at any time during the
term of this Agreement: (a) the total number of shares of issued and
outstanding Common Stock, plus (b) the number of shares of Common
Stock reserved for issuance pursuant to stock options granted (but
not yet exercised) under Company's stock option plans, and plus (c)
the number of votes which may be cast for the election of directors
(whether directly or by formula) as a result of ownership of any
Voting Securities other than Common Stock; provided, however, the
shares of Common Stock described in (b) above shall not be included
in Common Stock Equivalents until the earlier of (i) the date the
options are exercisable, or (ii) the end of the fiscal year of
Company during which such options were granted; provided, further,
that the votes described in (c) above shall not be included in Common
Stock Equivalents until the Voting Securities other than Common Stock
are able to be voted for the election of directors.
1.11 Effective Date. "Effective Date" means the date the
acquisition of Common Stock by Purchaser is consummated pursuant to
the terms of the Common Share and Warrant Purchase Agreement.
1.12 Exchange Act. "Exchange Act" means the Securities
Exchange Act of 1934, as amended.
1.13 Holder. "Holder" means Purchaser and any Person to
whom the registration rights under Article 7 have been transferred in
compliance with Section 7.7.
1.14 Investment Banking Firm. "Investment Banking Firm"
means an internationally recognized investment banking firm.
1.15 Market Disposition Program. See Section 3.8(a).
1.16 Notice of Exercise. See Section 3.8(b)(iii).
1.17 Notice of Issue. See Section 2.6.
1.18 Notice of Proposed Sale. See Section 3.8(a).
1.19 Percentage Limitation. See Section 2.2.
1.20 Permitted Percentage. "Permitted Percentage" means
the Percentage Limitation or, if the percentage of Common Stock
Equivalents owned by Purchaser increases as a consequence of (a) a
reduction in the number of outstanding Voting Securities other than
as a result of (1) the expiration of rights to acquire Common Stock
under Company's stock option plans or (2) the lapse of rights to vote
for the election of directors as a result of ownership of any Voting
Securities other than Common Stock, (b) Purchaser's acquisitions of
Voting Securities with Board approval in accordance with Section 2.8,
or (c) Purchaser's acquisitions of Voting Securities in a tender
offer permitted by Section 2.7, following which Company fails to
repurchase shares of Voting Securities in accordance with Section
2.7(b), such greater percentage of Common Stock Equivalents owned by
Purchaser after such reduction, acquisition, or failure,
respectively. The Permitted Percentage shall be reduced from time to
time if, upon the issuance by Company of Common Stock Equivalents,
Purchaser either does not or is not permitted by this Agreement to
purchase its full Permitted Percentage of such issuance.
1.21 Person. "Person" means any individual, partnership,
association, corporation, trust, limited liability company or other
entity, including without limitation employee pension, profit
sharing, and other benefit plans and trusts.
1.22 Principal Trading Market. "Principal Trading
Market" means the principal trading exchange or national automated
stock quotation system on which the Common Stock is traded or quoted.
1.23 Private Sale. See Section 3.8(a).
1.24 Purchaser. "Purchaser" means EMI and Purchaser
Affiliates, jointly and severally.
1.25 Purchaser Affiliate. "Purchaser Affiliate" means
any Affiliate of EMI.
1.26 Registrable Securities. See Section 7.1.
1.27 Registration Expenses. See Section 7.6(a).
1.28 Restriction Termination Date. See Section 7.1.
1.29 Selling Expenses. See Section 7.6(a).
1.30 Twenty Day Average. "Twenty Day Average" means the
average closing sale price of Common Stock on the Principal Trading
Market for the twenty (20) trading days preceding the earlier of the
closing of, or public announcement date concerning, the issuance of
Voting Securities by Company.
1.31 Unaffiliated Director. "Unaffiliated Director"
means a director on the Board who is not an Affiliated Director.
1.32 Voting Securities. "Voting Securities" means Common
Stock and any other Company securities entitled to vote for the
election of directors, or any security (including any preferred stock
of Company) convertible into or exchangeable for or exercisable for
the purchase of Common Stock or other Company securities entitled to
vote for the election of directors.
1.33 13D Group. "13D Group" means any group of Persons
formed for the purpose of acquiring, holding, voting or disposing of
Voting Securities required under Section 13(d) of the Exchange Act
and the rules and regulations thereunder (as now in effect) to file a
statement on Schedule 13D with the Commission as a "person" within
the meaning of Section 13(d)(3) of the Exchange Act disclosing
beneficial ownership of Voting Securities representing more than 5%
of any class of Voting Securities.
ARTICLE 2. RESTRICTIONS ON ACQUISITION OF ADDITIONAL SHARES BY
PURCHASER
2.1 No Purchases Before Effective Date. Except as
provided in Section 2.7, Purchaser shall not, between the date of
execution of this Agreement and the Effective Date, acquire in any
way or hold record or beneficial ownership of any Voting Securities.
2.2 No Purchases Beyond Percentage Limitation. Except as
otherwise permitted herein, Purchaser shall not, directly or
indirectly, acquire any Voting Securities beyond its "Percentage
Limitation." The "Percentage Limitation" shall be 20.1% of the
Common Stock Equivalents.
2.3 Permitted Purchase Due to Increases in Common Stock
Equivalents. If the Common Stock Equivalents increase at any time
and, as a consequence thereof Purchaser's aggregate ownership of
Common Stock Equivalents falls below the Percentage Limitation,
Purchaser may acquire additional shares of Common Stock up to the
Percentage Limitation, as follows:
(a) Purchaser may at any time do so by open-market
purchases, partial tender offer, or private transaction; and/or
(b) Purchaser may, in accordance with Section 2.4,
purchase unissued or treasury shares of Common Stock from Company.
2.4 Procedures Concerning Purchaser's Acquisition of
Shares From Company in Response to Increases in Common Stock
Equivalents.
(a) Within thirty (30) days after any increase in
Common Stock Equivalents (other than an increase previously notified
to EMI under Section 2.6), Company shall give EMI written notice
setting forth the number of Common Stock Equivalents prior to the
increase, the number of Common Stock Equivalents after the increase,
Purchaser's Percentage Limitation, the number of shares of Common
Stock Purchaser may purchase as a consequence of said increase, and
the per share purchase price for such shares.
(b) The purchase price per share of Common Stock
purchased under Section 2.3(b) shall be established as follows:
(i) if the Common Stock Equivalents increased
as a result of issuance by Company of one or more Voting Securities
(other than issuance of options under Company's stock option plans),
the price per share shall be the lesser of the Twenty Day Average or
the aggregate fair market value of all consideration received by
Company for such Voting Securities as determined in good faith by the
Board (including attribution of the consideration received with
respect to each Voting Security other than Common Stock) within
thirty (30) days after the issuance, divided by the number of Common
Stock Equivalents issued by Company; or
(ii) if the Common Stock Equivalents increased
as a result of Company's issuance of stock options under Company's
stock option plans, the purchase price shall be the exercise price of
such stock options.
(c) Purchaser shall have the right to purchase from
Company a number of shares of Common Stock equal to its Percentage
Limitation multiplied by the increase in the Common Stock
Equivalents. Purchaser shall have sixty (60) days from receipt of
Company's notice pursuant to Section 2.4.(a) above to notify Company
in writing whether it elects to purchase any of such shares of Common
Stock and, if it so elects, the number of shares it elects to
purchase. At the time Purchaser delivers its notice to Company,
there shall be a binding agreement between Purchaser and Company for
the purchase and sale of the number of shares of Common Stock elected
by Purchaser. Purchaser shall pay the purchase price to Company in
immediately available funds, and Company shall deliver certificates
representing the shares to Purchaser, on a date specified by
Purchaser in its notice, which date shall not be more than ten (10)
days after Purchaser delivers its notice to Company.
2.5 Limitation on Purchaser's Right to Purchase Common
Stock Pursuant to Section 2.3 in the Event of a Business Acquisition
by Company.
(a) Notwithstanding Section 2.3, Purchaser shall
have no right to purchase additional shares of Common Stock if (i)
the Common Stock Equivalents increased due to issuance by Company of
Voting Securities in connection with Company's acquisition of a
business entity from a third party, (ii) during the one year period
following closing of such an acquisition, Company repurchases a
number of shares of Voting Securities equal to or greater than the
number of shares of Common Stock Equivalents issued to the third
party, and (iii) Company's plan to repurchase shares was approved by
a majority of the Board and notice thereof was given to Purchaser
prior to the closing of the acquisition. If Company does not within
the one year period repurchase a number of shares of Voting
Securities equal to the number of Common Stock Equivalents issued to
the third party, Purchaser shall have all rights under Section 2.3 to
purchase shares of Common Stock up to its Percentage Limitation. For
purposes of Section 2.4, Company shall give notice to Purchaser in
accordance with Section 2.4(a) within thirty (30) days after the end
of the one year period, and the purchase price to be paid by
Purchaser to purchase shares from Company shall be established in
accordance with Section 2.4(b)(i) as of the date of the closing of
the business acquisition. Except as modified by the preceding
sentence, the provisions of Section 2.4 shall govern any such
purchase.
(b) The limitation contained in Section 2.5(a) shall
only apply to increases of fifteen percent (15%) or less in the
Common Stock Equivalents. If in connection with an acquisition
Company issues Voting Securities which cause the Common Stock
Equivalents to increase more than fifteen percent (15%), Purchaser
shall have all rights under Section 2.3 to purchase Common Stock in
connection with such increase over fifteen percent (15%).
2.6 Permitted Purchase If Company Proposes to Issue
Voting Securities for Cash. If Company proposes to issue Voting
Securities solely for cash pursuant to a registered offering or a
private placement, and as a consequence thereof Purchaser's aggregate
ownership of Common Stock Equivalents would fall below its Percentage
Limitation, Company shall give EMI written notice of such fact (the
"Notice of Issue") at least thirty (30) days prior to the anticipated
date of such issuance stating the anticipated number of Common Stock
Equivalents to be issued and the anticipated price per Common Stock
Equivalent. Purchaser shall have the right to purchase from Company
the number of shares of Common Stock required for Purchaser to own in
the aggregate the Percentage Limitation of the Common Stock
Equivalents following the issuance of the shares actually issued in
such registered offering or private placement. Purchaser shall have
fifteen (15) days from receipt of the Notice of Issue to notify
Company in writing whether it elects to purchase any of such shares
of Common Stock and, if it so elects, the number of shares it elects
to purchase. At the time Purchaser delivers its election to Company,
there shall be a binding agreement between Purchaser and Company for
the purchase and sale of the number of shares of Common Stock elected
by Purchaser, subject to the consummation of such sale described in
the Notice of Issue. The purchase price per share shall be the price
per Common Stock Equivalent at which the Voting Securities are
actually issued by Company; provided, however, that without
Purchaser's consent the purchase price shall not be more than one
hundred twenty percent (120%) of the anticipated price per Common
Stock Equivalent set forth in the Notice of Issue. Purchaser shall
pay the purchase price to Company in immediately available funds, and
Company shall deliver certificates representing the shares of Common
Stock to Purchaser, on the date of Company's issuance of the Voting
Securities.
2.7 Permitted Purchase in Response To Third Party Tender
Offer or Exchange Offer.
(a) If a tender or exchange offer is made by any
Person or 13D Group (other than Purchaser or any Person acting in
concert with Purchaser) to acquire Voting Securities, Purchaser may
make a tender offer for up to an equivalent number of shares of such
Voting Securities as are sought to be purchased by the party making
the other tender offer. If Purchaser initiates a tender offer under
this Section 2.7, the tender offer may be on such terms as Purchaser
shall elect and Company agrees that it shall not in any way (whether
by active opposition, Board announcement or otherwise) contest said
tender offer.
(b) If, following such a tender offer by Purchaser,
it owns in the aggregate more than the Percentage Limitation of the
Common Stock Equivalents, Company shall have the right, exercisable
at any time during the six month period following completion of
Purchaser's tender offer, to demand the purchase from Purchaser a
number of shares of such Voting Securities as will cause Purchaser to
own in the aggregate the Percentage Limitation of the Common Stock
Equivalents following such purchase; provided, however, that
Purchaser shall not be obligated to sell any Common Stock Equivalents
to Company pursuant to this Section 2.7 until such time as such sale
would not subject Purchaser to liability under Section 16(b) of the
Exchange Act or any other applicable provision of federal or state
law; and, provided further, that Purchaser shall not be entitled to
vote such Common Stock Equivalents between the time of Company's
demand to purchase pursuant to this Section 2.7(b) and Purchaser's
sale of such Common Stock Equivalents. Company shall, within said
six month period, notify EMI in writing whether it elects to purchase
any of such shares and, if it so elects, the number of shares it
elects to purchase. At the time Company delivers its notice to EMI,
there shall be a binding agreement between Purchaser and Company for
the purchase and sale of the number of shares of such Voting
Securities elected by Company.
(c) The purchase price per share shall be the price
per share paid by Purchaser in such tender offer to the tendering
shareholders. In addition, Company shall reimburse Purchaser for
Purchaser's pro-rata share of the costs and expenses incurred in
conducting said tender offer. The pro-rata share of costs and
expenses shall be the aggregate of all costs and expenses (including
Purchaser's cost of borrowing, not to exceed the lesser of the prime
interest rate plus 1% and Company's then-current cost of borrowing)
actually incurred by Purchaser, divided by the number of shares of
Voting Securities acquired by it in the tender offer. Company shall
pay the purchase price and the costs and expenses described in this
paragraph to Purchaser in immediately available funds, and Purchaser
shall deliver certificates representing the shares to Company, on a
date specified by Company in its notice, which date shall not be more
than twenty (20) days after Company delivers its notice to EMI.
(d) If Company's purchase is subject to or is
voluntarily submitted for shareholder approval, Purchaser shall vote
all its Voting Securities in favor of the purchase.
(e) If Company does not elect to purchase shares
from Purchaser, or elects to purchase only a portion of the shares
under Section 2.7(b), Purchaser shall be entitled to retain the
shares over the Percentage Limitation but the Percentage Limitation
shall remain 20.1%.
2.8 Permitted Purchase With Board Approval.
Notwithstanding any other provision of this Agreement, Purchaser may
purchase additional shares of Voting Securities at any time, if two
thirds (2/3) of the Unaffiliated Directors approve such purchase in
advance.
2.9 Permitted Purchase by 100% Tender Offer After Four
Years. Notwithstanding any other provision of this Agreement,
commencing on the fourth anniversary of the Effective Date, Purchaser
shall have the right to acquire additional shares of Common Stock by
means of a tender offer in accordance with Section 2.10 below.
2.10 Requirements for Tender Offers.
(a) Whenever Purchaser shall make a tender offer for
shares of Common Stock under Section 2.9, Purchaser may not close the
acquisition of the tendered shares unless all of the following
requirements have been satisfied:
(i) Purchaser's offer shall have been made to
all holders of Common Stock;
(ii) Purchaser shall offer to purchase for cash
all shares tendered; and
(iii) Purchaser's offer shall have been
accepted by shareholders owning not less than two-thirds (2/3) of the
outstanding Common Stock.
(b) With respect to calculating whether Purchaser's
offer has been accepted by shareholders owning two-thirds (2/3) of
the outstanding Common Stock, Common Shares beneficially owned by
Purchaser shall be excluded from the outstanding Common Stock.
2.11 Mandatory Disposal of Excess Shares. If in
violation of any provision of this Article 2 Purchaser shall at any
time hold in the aggregate in excess of its then Permitted
Percentage, Purchaser shall be required to dispose of such excess
shares by promptly selling, subject to Company's right of first
refusal under Section 3.7, sufficient Voting Securities so that after
such sale Purchaser shall own in the aggregate not more than its then
Permitted Percentage, provided, however, that Purchaser shall not be
obligated to sell any Voting Securities to Company pursuant to this
Section 2.11 until such time as such sale would not subject Purchaser
to liability under Section 16(b) of the Exchange Act or any other
applicable provision of federal or state law; and, provided further,
that Purchaser shall not be entitled to vote such Voting Securities
between the time of Company's demand that Purchaser dispose of such
Voting Securities pursuant to this Section 2.11 and Purchaser's
disposal of such Voting Securities. If Purchaser fails to dispose of
shares of Voting Securities within one hundred eighty (180) days
after receipt of notice from Company advising EMI of its obligation
so to dispose of shares (it being understood that giving of notice by
Company is not a precondition to Purchaser's obligation to dispose of
excess shares), Company shall have the right to redeem at par value
from Purchaser a number of shares of Common Stock so that after such
redemption the shares of Voting Securities owned by Purchaser do not
exceed Purchaser's then Permitted Percentage. Any Voting Securities
held by Purchaser in contravention of this Section 2.11 may not be
voted in any manner on which shareholders of Company are entitled to
vote and Company shall not be required to count any such votes, if
cast, in determining the result of shareholder voting on any matter.
2.12 Monthly Report of Ownership. During the term of
this Agreement, Purchaser will furnish to Company, within ten (10)
days after the end of each calendar month in which Purchaser acquires
or disposes of any Voting Securities, a statement showing the number
of shares of Voting Securities acquired or disposed of during the
just ended month and the aggregate number of shares of Voting
Securities held by Purchaser at the end of such month. To the extent
that any such acquisition or disposition must be reported to the
Commission, Purchaser may fulfill the statement requirement in this
Section 2.12 by providing to Company a copy of such report to the
Commission.
2.13 General Rule Regarding Acquisition of Voting
Securities. Purchaser agrees that any and all acquisitions of Voting
Securities shall be made in compliance with all applicable federal
and state securities laws. EMI agrees to indemnify, defend and hold
harmless Company, its officers, directors and employees from and
against any and all losses, claims, liabilities, assertions and
expenses incurred or suffered by any of them, including attorneys'
fees and costs of litigation, as a consequence of a claim by any
party other than Company or any of its Affiliates that Purchaser
breached its obligations set forth in the preceding sentence.
2.14 Requirements of Trading Exchange or Stock Quotation
System.
Notwithstanding any other provision of this Agreement, if,
by reason of the listing or other requirements of the principal
trading exchange or national automated stock quotation system on
which the Company's Common Stock is then traded or quoted, the
issuance by Company of any additional Voting Securities to Purchaser
pursuant to this Article 2 requires approval of Company's
shareholders, then Company's obligation to issue and sell such
additional Voting Securities to Purchaser shall be subject to receipt
of such shareholder approval, which Company shall use its best
efforts to obtain as soon as possible after the date on which
Purchaser shall otherwise become entitled to purchase such additional
Voting Securities from Company pursuant to this Article 2.
ARTICLE 3. SALES OF SHARES BY PURCHASER AND RELATED RIGHTS AND
OBLIGATIONS OF PURCHASER AND COMPANY
3.1 General Restrictions on Resale or Other Disposition.
During the term of this Agreement, Purchaser shall not sell, transfer
any beneficial interest in, pledge, hypothecate or otherwise dispose
of any Voting Securities except in compliance with Article 3.
3.2 Allowed Sales Pursuant to Registration Rights.
Subject to Company's right of first refusal under Section 3.7,
Purchaser may at any time sell Common Stock by means of an offering
made pursuant to the registration rights set forth in Article 7
below.
3.3 Allowed Sales Pursuant to Rule 144. Subject to
Company's right of first refusal under Section 3.7, Purchaser may at
any time sell Common Stock pursuant to Rule 144 of the General Rules
and Regulations under the Act, provided that Purchaser shall notify
Company at least two Business Days prior to the date of entering any
sale or transfer order of Common Stock pursuant to Rule 144, and
provided further that, if Company shall thereupon notify EMI of the
pendency of its public offering of any Voting Securities, Purchaser
shall not effect any sales under Rule 144 within 10 days prior to the
commencement of or during such offering.
3.4 Allowed Private Sales to Third Parties or Pursuant to
Tender Offer. Subject to Company's right of first refusal under
Section 3.7, Purchaser may at any time make private sales of Voting
Securities to a third person, including sales pursuant to a tender
offer or exchange offer.
3.5 Allowed Transfers by EMI and Purchaser Affiliates.
EMI and Purchaser Affiliates may at any time transfer Voting
Securities among themselves, provided that such transfer would have
no clear, adverse impact of a financial character on Company, and
would not adversely affect the liabilities and/or responsibilities of
EMI to Company, provided that the transferee shall agree in advance
in writing to be bound by the terms of this Agreement.
3.6 Allowed Transfers Upon Approved Business Disposition.
Purchaser may dispose of Voting Securities in conjunction with a
merger or consolidation in which Company is acquired, or in
conjunction with a sale of all or substantially all of Company's
assets, provided a majority of the Board approved such merger,
consolidation, or sale.
3.7 Right of First Refusal. If during the term of this
Agreement, Purchaser desires to sell all or part of its Voting
Securities pursuant to Section 2.11, 3.2, 3.3 or 3.4, Company shall
have a right of first refusal to purchase said Voting Securities in
accordance with the procedures set forth in Section 3.8 below.
3.8 Procedures for Right of First Refusal.
(a) If Purchaser desires to sell a third party all
or part of its Voting Securities pursuant to Section 3.4 above
("Private Sale"), or if Purchaser desires to sell all or part of its
Common Stock in the open market pursuant to Section 3.2 or 3.3 above
("Market Disposition Program"), Purchaser shall transmit to Company a
written notice ("Notice of Proposed Sale") setting forth:
(i) if a Private Sale, (A) as to each Person
to whom such sale is proposed to be made: (1) the name, address and
principal business activity of such Person; (2) the number of shares
of Voting Securities proposed to be sold to such Person; (3) the
manner in which the sale is proposed to be made; and (4) the price at
which or other consideration for which, and the material terms upon
which, such sale is proposed to be made, and (B) representing that
the Private Sale is bona fide; and
(ii) if sales pursuant to a Market Disposition
Program: (A) the approximate date the sales are scheduled to
commence; and (B) the amount of Common Stock sought to be disposed
of.
(b) Upon receipt of the Notice of Proposed Sale
Company shall have an option to purchase, in the case of a Private
Sale, all but not less than all of the Voting Securities proposed to
be sold, and in the case of a Market Disposition Program, all, if the
Market Disposition Program is a firm commitment public offering, or,
if it is not such an offering, any part, of the Common Stock proposed
to be disposed of, on the following terms and conditions;
(i) If the option arises in connection with a
Private Sale, the purchase price shall be the price specified in the
Notice of Proposed Sale.
(ii) If the option arises in connection with a
Market Disposition Program, the purchase price per share of Common
Stock shall be the Twenty Day Average determined as if the day
Purchaser delivers the Notice of Proposed Sale to Company is the
closing date of an issuance of securities by Company in the absence
of any public announcement.
(iii) If a majority of the Unaffiliated
Directors determine to exercise the option, they shall direct Company
to send a written notice (the "Notice of Exercise") to EMI within
thirty (30) days after the Notice of Proposed Sale is received by
Company specifying the number of shares Company is purchasing;
provided, however, that in the case of a tender offer or exchange
offer, EMI must receive the Notice of Exercise not less than forty-
eight (48) hours prior to the earlier of (A) the expiration of the
tender offer or exchange offer or (B) any date after which shares
tendered may be treated less favorably than shares tendered prior
thereto. If approval of such purchase by Company's shareholders is
required by law or Company's Restated Articles of Incorporation, and
if the Private Sale is in response to a tender offer, Company shall
waive its right of first refusal granted under Section 3.7;
otherwise, Company's Notice of Exercise shall be subject to receipt
of such shareholder approval, which Company shall use its best
efforts to obtain as soon as possible, and in any event within one
hundred twenty (120) days after, the date of the Notice of Exercise.
Company's failure to obtain shareholder approval within the one
hundred twenty (120) day period shall give Purchaser the right to
proceed with the proposed sale under Section 3.8(c). If such
repurchase is subject to shareholder approval, Purchaser shall vote
all its Voting Securities in favor of the purchase.
(iv) Upon EMI's receipt of the Notice of
Exercise, there shall be a binding agreement between Purchaser and
Company for the purchase and sale of the number of shares contained
in the Notice of Exercise. The closing of the purchase and sale
shall occur on the thirtieth Business Day following EMI's receipt of
the Notice of Exercise. At the closing Purchaser will deliver to
Company certificates for the Voting Securities to be sold, duly
endorsed for transfer or accompanied by a duly executed stock power,
and Company will deliver to Purchaser the purchase price as follows:
if Company's purchase is following Purchaser's proposed Private Sale,
Company shall pay Purchaser the price specified in the Notice of
Proposed Sale in the same manner (and the sale shall be upon the same
terms) specified therein, and if Company's purchase is following
Purchaser's proposed Market Disposition Program, Company shall pay
Purchaser at the closing for the shares purchased in immediately
available funds; provided, however, that if Company receives a Notice
of Proposed Sale on or before the third anniversary of the Effective
Date, Company shall have the option to pay Purchaser by delivery at
the closing of ten (10%) percent of the purchase price in immediately
available funds, and the balance by delivery of a promissory note
providing terms specified in the next succeeding sentence; provided,
further, that notwithstanding the preceding proviso, if the Notice of
Proposed Sale received by Company on or before the third anniversary
describes a proposed Private Sale in response to a tender offer,
Company shall pay the purchase price in the same manner (and the sale
shall be upon the same terms) specified in the Notice of Proposed
Sale. The promissory note shall provide for: fixed interest at a
rate equal to the Company's then-current cost of borrowing; equal
annual installments including interest payable on each anniversary of
the closing in immediately available funds, with each installment in
an amount sufficient to amortize the promissory note in ten annual
payments; and for the entire unpaid balance including accrued and
unpaid interest to be payable on the fifth anniversary of the
closing.
(v) Company may assign its right to purchase
the Voting Securities and may designate in the Notice of Exercise one
or more Persons to take title to all or any part of the Voting
Securities, but this shall not relieve Company of its obligation to
pay the purchase price.
(c) If following receipt of a Notice of Proposed
Sale Company fails to give EMI a Notice of Exercise within the
prescribed time period, Purchaser shall be free to effect such sale
on the following terms and conditions:
(i) if a Private Sale was proposed, Purchaser
may effect such sale at any time during the period ending one hundred
twenty (120) days after the date Company's Notice of Exercise was
required to be given, to the Person or Persons specified in the
Notice of Proposed Sale for the consideration and on the terms
specified in said notice; and
(ii) if a Market Disposition Program was
proposed, Purchaser may effect such sales at any time during the
period ending one hundred eighty (180) days after the date Company's
Notice of Exercise required to be given.
(d) If Purchaser does not make the sales within the
time periods provided above, the Voting Securities so proposed to be
sold will once again become subject to this Agreement to the same
extent as if such sales had not been proposed.
3.9 Purchaser's Covenants With Respect to Distribution of
Shares. In any transaction or transactions under Section 3.2 or 3.3,
Purchaser shall use its reasonable best efforts, and shall cause any
underwriter involved to use its reasonable best efforts, to sell the
Common Stock in the United States and in a manner which will effect
the broadest distribution reasonably possible, with no sales to any
one person or group (as defined in the Exchange Act) in excess of 10%
of the Common Stock sold in such sale.
3.10 Company's Undertaking to Cooperate in Rule 144
Transactions. In the event of any proposed sales of Common Stock by
Purchaser under Section 3.3, Company shall cooperate with Purchaser
to enable such sales to be made in accordance with applicable laws,
rules and regulations, the requirements of Company's transfer agent,
and the reasonable requirements of the broker through which the sales
are proposed to be executed, and shall, upon request, furnish
unlegended certificates representing Common Stock in such numbers and
denominations as Purchaser shall reasonably require for delivery in
connection with such sales.
ARTICLE 4. LEGENDS AND STOP TRANSFER ORDERS
4.1 Placement of Legends and Entry of Stop Transfer
Orders. Purchaser agrees:
(a) that, within ten (10) Business Days after its
acquisition of any certificates evidencing Voting Securities (or, in
the case of Voting Securities currently owned by Purchaser, within
ten (10) Business Days after the date hereof) to submit such
certificates to Company for placing on the face thereof the following
legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY APPLICABLE STATE SECURITIES LAW AND ARE SUBJECT TO
THE RESTRICTIONS ON DISPOSITION SET FORTH IN AND TO THE
OTHER PROVISIONS OF A COMMON SHARE AND WARRANTY PURCHASE
AGREEMENT, DATED FEBRUARY 27, 1995, BETWEEN VWR
CORPORATION AND EM INDUSTRIES, INCORPORATED, AND A
STANDSTILL AGREEMENT, DATED FEBRUARY 27, 1995, BETWEEN VWR
CORPORATION AND EM INDUSTRIES, INCORPORATED. COPIES OF
SUCH AGREEMENTS ARE ON FILE AT THE RESPECTIVE OFFICES OF
VWR CORPORATION AND EM INDUSTRIES INCORPORATED.";
and such additional legends designed to ensure compliance with
Federal and State laws as counsel for Company may reasonably request;
and
(b) to the entry of stop transfer orders with the
transfer agents of any such Voting Securities, against the transfer
of such legended certificates except in compliance with this
Agreement.
4.2 Removal of Legends and Stop Transfer Orders. Company
agrees that it will, upon receipt of an opinion from its counsel that
it is appropriate so to do and upon the presentation to its transfer
agent of the certificates containing the legends provided for in
Section 4.1(a), remove such legends and withdraw the stop transfer
orders provided for in Section 4.1(b) with respect to such
certificates, upon the earlier of the following:
(a) any sale of the shares represented by such
certificates made under Section 3.2, 3.3, or 3.4; or
(b) termination of this Agreement.
ARTICLE 5. CERTAIN AGREEMENTS OF PURCHASER AND COMPANY
5.1 Future Actions. Purchaser shall not, unless the
prior written consent of the Board (in which a majority of the
Unaffiliated Directors shall concur) has been obtained, and then only
to the extent express written consent has been obtained:
(a) at any time before the expiration of four (4)
years after the Effective Date, solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Exchange Act) in opposition to the
recommendation of the majority of the directors on the Board with
respect to any matter; or
(b) deposit any Voting Securities in a voting trust
or subject them to a voting agreement or other arrangement of similar
effect; provided, however, that nothing in this Section 5.1 shall
preclude Purchaser from so depositing any Voting Securities if such
trust, agreement or arrangement is, and continues to be during the
term of this Agreement, solely by and among EMI and Purchaser
Affiliates; or
(c) join a partnership, limited partnership,
syndicate or other group for the purpose of acquiring, holding or
disposing of Voting Securities within the meaning of Section 13(d) of
the Exchange Act; or
(d) induce or attempt to induce any other Person to
initiate a tender offer for any securities of Company, or to effect
any change of control of Company, or take any action for the purpose
of convening a stockholders' meeting of Company; or
(e) acquire, by purchase or otherwise, more than 1%
of any class of equity securities of any entity which, prior to the
time Purchaser acquires more than 1% of such class, is publicly
disclosed (by filing with the Commission or otherwise) to be the
beneficial owner of more than 5% of any class of the Voting
Securities; if Purchaser owns in the aggregate in excess of 1% of any
such entity, it shall promptly divest such excess; provided, however,
that Purchaser shall not be obligated to divest itself of such excess
pursuant to this Section 5.1(e) until such time as such divestment
would not subject Purchaser to liability under Section 16(b) of the
Exchange Act or any other applicable provision of federal or state
law; and, provided further, that Purchaser shall not be entitled to
vote such Voting Securities until Purchaser shall divest itself of
such excess; and, provided further, that upon being notified by
Company in writing that an entity owns in excess of 5% of any class
of the Voting Securities, Purchaser shall affirm in writing to
Company that Purchaser does not own, in the aggregate, more than 1%
of any class of equity securities of such Person.
5.2 Acquisitions and Transfers in Contravention of
Agreement. Notwithstanding Company's rights to seek injunctions or
other relief, any Voting Securities acquired or transferred by
Purchaser in contravention of this Agreement may not be voted on any
matter on which shareholders of Company are entitled to vote, any
attempt to vote such Voting Securities shall be a breach of this
Agreement and Company shall not be required to count any such votes,
if cast, in determining the result of shareholder voting on any
matter.
5.3 Company's Issuance of Securities. During the term of
this Agreement, Company shall not issue any security (including
without limitation any Voting Security) which provides the holder(s)
thereof with any extraordinary or special voting rights or any right
to veto any action of Company, unless such issuance is approved in
advance by an Affiliated Director. Further, Company shall not
consider or approve any such issuance prior to the Effective Date.
ARTICLE 6. BOARD OF DIRECTORS
6.1 Size of Board. On or before the Effective Date,
Company shall take all requisite action to increase the size of the
Board by two to eleven and to appoint, effective as of the Effective
Date, individuals designated by EMI to fill the two new seats.
6.2 Terms. EMI shall advise company on or before the
Effective Date which of the Affiliated Directors shall have a term
expiring at the second annual meeting of shareholders of Company next
following the Effective Date, and which shall have a term expiring at
the third such annual meeting. After the term of any Affiliated
Director expires, his or her successor shall serve a term of three
(3) years as provided in the Restated Articles of Incorporation of
Company.
6.3 Vacancies. In the event of the death, resignation,
retirement, disqualification or removal from office of any Affiliated
Director for any reason, EMI shall have the right to designate a
replacement for such Affiliated Director, or fill such vacancy, to
the extent EMI would be entitled to designate a nominee for election
to the Board of Directors pursuant to Section 6.4 hereof if directors
were to be elected at an annual meeting occurring at such date.
6.4 Proportional Representation.
(a) Company shall annually cause representatives
designated by EMI to be nominated for election to the Board so as to
provide Purchaser with that percentage representation on the Board,
rounded down to the nearest whole number, as shall equal the
Permitted Percentage applicable at the time of each annual
nomination. With respect to committees of the Board, Purchaser shall
be entitled to be represented on any committee with respect to which
EMI requests representation.
(b) Purchaser shall vote its shares of Common Stock
so as to elect to the Board its proportionate number of Affiliated
Directors and the persons who have been designated by the
Unaffiliated Directors, and in all other matters so as to provide
other Company shareholders with corresponding proportionate
representation. If, pursuant to the Restated Articles of
Incorporation of Company, cumulative voting for the election of
Company directors is required, Purchaser may initially vote its
shares to ensure that its then proportionate number of Affiliated
Directors are elected. Purchaser agrees that, once its proportionate
number of Affiliated Directors are elected, Purchaser shall vote its
shares of Common Stock so as to elect persons to the Board who have
been designated by the Unaffiliated Directors.
(c) Subject to the provisions of Section 6.3,
Company may effect changes in Board representation by increase in the
size of the Board or by resignations or retirements of Board members.
Notwithstanding the foregoing, Purchaser's right to proportional
Board representation shall not cause the number of Affiliated
Directors to (i) decrease during the one year period during which
Company has the right to purchase Voting Securities under Section
2.5(a), or (ii) increase during the six month period during which
Company has the right to purchase Voting Securities under Section
2.7(b).
ARTICLE 7. REGISTRATION RIGHTS
7.1 Duration of Registration Rights. Purchaser's rights
to have Company register shares of Registrable Securities (as defined
below) provided in this Article 7 shall terminate upon the
Restriction Termination Date (as defined below). Rights of a Holder
other than Purchaser to have Company register shares of Registrable
Securities provided in this Article 7 shall terminate upon the
Restriction Termination Date. As used in this Article 7,
"Registrable Securities" shall mean all Common Stock so long as
certificates representing the same are required to bear the
restrictive legend set forth in Section 4.1 hereof, to the extent
that such legend refers to registration under the Act. As used in
this Article 7, "Restriction Termination Date" shall mean, with
respect to any Registrable Securities, the earliest of (i) the date
that such Registrable Securities shall have been Registered and sold
or otherwise disposed of in accordance with the intended method of
distribution by the seller or sellers thereof set forth in the
Registration Statement covering such Registrable Securities or
transferred in compliance with Rule 144 under the Securities Act and
(ii) the date that an opinion of counsel to Company, which opinion of
counsel shall be reasonably acceptable to Purchaser, containing
reasonable assumptions shall have been rendered and, based upon such
opinion, the legend referred to in Section 4.1 hereof, to the extent
that such legend refers to registration under the Act, shall have
been removed.
7.2 Demand Registration Covenant.
(a) If a Holder requests in writing that Company
register under the Act any Registrable Securities then owned by
Holder, Company will use its best efforts to cause the offering and
sale to be registered as soon as reasonably practicable. In
connection therewith Company shall prepare and file a registration
statement under the Act on such form as Company shall determine to be
appropriate; provided, however, that Company shall not be obligated
to file more than one registration statement pursuant to this Section
7.2 during any 12-month period. The request shall specify the amount
of Registrable Securities intended to be offered and sold, shall
express Holder's present intent to offer such Registrable Securities
for distribution, shall describe the nature or method of the proposed
offer and sale, and shall contain the undertaking of Holder to comply
with all applicable requirements of this Article 7.
(b) Upon receipt of a request for registration under
Section 7.2, Company will promptly give notice to all Holders other
than those initiating the request and provide a reasonable
opportunity for such Holders to participate in such registration.
Any such other Holder must notify Company in writing of its desire to
participate, within thirty (30) days of receipt of Company's notice.
(c) Any request for registration under Section 7.2
must be for a firm commitment public offering to be managed by one or
more Investment Banking Firms selected by the Holders requesting
registration, provided that such Investment Banking Firms are
reasonably satisfactory to Company. If, in the written opinion of
the Investment Banking Firms marketing factors require a limitation
of the number of shares to be underwritten, and if the total amount
of securities that all Holders (initiating and non-initiating)
request pursuant to Section 7.2 to be included in such offering
exceeds the amount of securities that the Investment Banking Firms
reasonably believe compatible with the success of the offering,
Company shall only be required to include in the offering the amount
of Registrable Securities that the Investment Banking Firms believe
will not jeopardize the success of the offering, and such amount
shall be allocated among such Holders in proportion to the respective
amounts of Registrable Securities proposed to be sold by each of the
Holders. Any shares of Registrable Securities that are so excluded
from the underwriting shall be excluded from the registration.
(d) Subject to the provisions of Section 7.2(a) and
7.2(b), if within forty-five (45) days after receipt of a request
under Section 7.2(a) and any requests under Section 7.2(b), Company
shall have obtained (i) from Commission a "no-action" letter, in form
and substance reasonably satisfactory to the counsel of the Holders
requesting registration, in which the Commission has indicated that
it will take no action if, without registration under the Act,
Holders dispose of the Registrable Securities covered by the
request(s) in the manner proposed or (ii) any opinion of its counsel
(concurred in by counsel for the requesting Holder(s)) that no
registration under the Act is required, Company need not comply with
such request or request(s); provided, however, that receipt of such
"no-action" letter or opinion shall not constitute a registration for
the purpose of determining Company's obligations to Holders under
Section 7.2; and provided, further, that in such event counsel for
Company shall opine that, whether by reason of the "no-action" letter
or otherwise, the removal of any legend from certificates
representing all shares to which such "no-action" letter or opinion
refers is permissible, and, if so, Company shall remove from such
certificates all legends no longer required and shall rescind any
stop-transfer instructions previously communicated to its transfer
agent relating to such certificates.
7.3 Participation Registration Covenant. If Company
shall propose registration under the Act of an offering of Common
Stock, Company shall give prompt written notice of such fact to each
Holder and will use all reasonable efforts to cause the registration
of such number of shares of Common Stock then owned by Holders as
Holders shall request, within fifteen (15) days after receipt of such
notice, to be included, upon the same terms (including the method of
distribution) of any such offering; provided, however, that (a)
Company shall not be required to give notice or include such Common
Stock in any such registration if the proposed registration (i) is
not a primary registration of securities by Company for its own
account, or (ii) is primarily (A) a registration of a stock option or
compensation plan or of securities issued or issuable pursuant to any
such plan, or (B) a registration of securities proposed to be issued
in exchange for securities or assets of, or in connection with a
merger or consolidation with, another corporation; (b) the offering
of Common Stock by Holders shall comply with Section 3.9 above; and
(c) Company may, in its sole discretion and without the consent of
the Holders, withdraw such registration statement and abandon the
proposed offering.
7.4 Company's Obligations in Connection with
Registrations. In connection with any registration of Registrable
Securities undertaken by Company under Article 7, Company shall:
(a) furnish to Holders or their underwriter such
copies of any prospectus (including any preliminary prospectus)
Holders may reasonably request to effect the offering and sale, but
only while Company is required under the provisions hereof to cause
the registration statement to remain current and effective;
(b) use its best efforts to qualify the offering
under applicable Blue Sky or other state securities laws to enable
Holders to offer and sell the Registrable Securities; provided,
however, that Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any jurisdiction in
which it is not then qualified;
(c) furnish Holders, at the expense of Company, with
unlegended certificates representing ownership of the Registrable
Securities being sold in such numbers and denominations as Holders
shall reasonably request, meeting the requirements of the Principal
Trading Market;
(d) use its best efforts to cause the registration
statement to remain current and effective for sixty (60) days
following its effective date or such lesser period as the
underwriters may agree; and
(e) instruct the transfer agent(s) and the
registrar(s) of Company's securities to release the stop transfer
orders with respect to the Registrable Securities being sold.
(f) Company will promptly prepare and file with the
Commission such amendments and prospectus supplements, including
post-effective amendments, to the Registration Statement as Company
determines may be necessary or appropriate, and use its best efforts
to have such post-effective amendments declared effective as promptly
as practicable; cause the related prospectus to be supplemented by
any prospectus supplement, and as so supplemented, to be filed with
the Commission; and notify the Holders of any securities included in
such Registration Statement and the underwriter thereof, if any,
promptly when a prospectus, any prospectus supplement or post-
effective amendment must be filed or has been filed and, with respect
to any post-effective amendment, when the same has become effective,
and make the same available to such Holders and any underwriter.
(g) Company will furnish to each Holder and the
underwriter thereof, if any, a signed counterpart, addressed to each
Holder and underwriter, of (i) an opinion or opinions of counsel to
Company and (ii) a comfort letter or comfort letters from Company's
independent public accountants, each in customary form and covering
such matters of the type customarily covered by opinions or comfort
letters, as the case may be, as Holders or the underwriter may
reasonably request.
(h) Company will make generally available to its
securityholders, as soon as reasonably practicable, an earning
statement covering a period of 12 months, beginning three months
after the effective date of the Registration Statement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
(i) Company will use its best efforts to cause all
such Registrable Securities to be listed in the Principal Trading
Market, and on each securities exchange on which similar securities
issued by Company are then listed.
7.5 Conditions to Obligations of Company Under
Registration Covenants. Company's obligations to register the
Registrable Securities owned by Holders under Article 7 are subject
to the following conditions.
(a) Company (upon the decision of a majority of the
Unaffiliated Directors) shall be entitled to postpone for up to
ninety (90) days the filing of any registration statement under
Section 7.2, if at the time it receives the request for registration
such Unaffiliated Directors determine, in their reasonable judgment,
that such registration and offering would materially interfere with
any financing, acquisition, corporate reorganization or other
material transaction involving Company or any of its Affiliates.
Company shall promptly give Holders written notice of such
determination.
(b) Company may require that the number of shares of
Registrable Securities offered for sale by Holders pursuant to a
request for registration under Section 7.3 be decreased or excluded
entirely if, in the opinion of Company's Investment Banking Firm,
such reduction is desirable to permit the orderly distribution and
sale of the securities being offered. If Company shall require such
a reduction, Holders shall have the right to withdraw from the
offering.
(c) If Holders request registration pursuant to
Section 7.2, Company will enter into an underwriting agreement
containing representations, warranties and agreements not materially
different from those customarily included in underwriting agreements
with an issuer for a secondary distribution; provided, however, that
Company will not be obligated to indemnify the Investment Banking
Firms on terms materially different from those set forth in Section
7.8:
(d) Company may require, as a condition to
fulfilling its obligations under the registration covenants in
Sections 7.2 and 7.3, the indemnification agreements provided in
Section 7.8(b) from Holders and the underwriters.
(e) It shall be a condition precedent to the
obligations of Company to take action pursuant to this Article 7 that
each Holder whose Registrable Securities are being registered, and
each underwriter designated by such Holder, will furnish to Company
such information and materials as Company may reasonably request and
as shall be required in connection with the action to be taken by
Company. To the extent possible Holders shall provide Company with
any information and materials required to obtain acceleration of the
effective date of the registration statement.
(f) If, in the reasonable opinion of counsel to
Company it is necessary or appropriate for Company to comply with any
applicable rule, regulation, or release promulgated by the
Commission, each Holder whose Registrable Securities are being
registered and any underwriter participating in such public offering
shall execute and deliver to Company an appropriate agreement, in
form satisfactory to counsel for Company, that such Holder or
underwriter will comply with all prospectus delivery requirements of
the Act and with all anti-stabilization, manipulation, and similar
provisions of Section 10 of the Exchange Act and any rules issued
thereunder by the Commission, and will furnish to Company information
about sales made in such public offering.
(g) Holders of Common stock included in the
registration statement shall not (until further notice) effect sales
thereof after receipt of written notice (which may include notice by
telegraph) from Company to suspend sales, to permit Company to
correct or update a registration statement or prospectus; provided,
however, that the obligations of Company with respect to maintaining
any registration statement current and effective shall be extended by
a period of days equal to the period such suspension is in effect.
(h) At the end of the period during which Company is
obligated to keep any registration statement current and effective
(and any extensions thereof required by the preceding paragraph), and
upon receipt of notice from Company of its intention to remove from
registration the securities covered by such registration statement
that remain unsold, Holders of Registrable Securities included in the
registration statement shall discontinue sales of such Registrable
Securities pursuant to such registration statement, and each such
Holder shall notify Company of the number of shares registered
belonging to such Holder that remain unsold promptly following
receipt of such notice from Company.
7.6 Expenses.
(a) In connection with any registration pursuant to
Section 7.2, all Registration Expenses (as defined below) shall be
borne fifty percent (50%) by Company and fifty percent (50%) by
Holders of the Registrable Securities on the basis of the number of
shares registered by them, and all Selling Expenses (as defined
below) shall be borne by Holders of the Registrable Securities on the
basis of the number of shares registered by them. As used in this
Section 7.6, "Registration Expenses" shall mean all expenses incurred
by Company in complying with this Article 7, including, without
limitation, all federal and state registration, qualification and
filing fees, printing expenses, fees and disbursements of counsel for
Company, Blue Sky fees and expenses, and the expense of any special
audits incident to or required by such registration. As used in this
Section 7.6, "Selling Expenses" shall mean all underwriting discounts
and selling commissions applicable to the sale of Registrable
Securities pursuant to this Agreement and all fees and disbursements
of counsel for any Holder.
(b) In connection with any registration pursuant to
Section 7.3, Company shall pay all Registration Expenses and Selling
Expenses, except to the extent the aggregate of such expenses exceeds
the amount which Company would have expended in conducting an
offering of only the shares sold by it, and the participating Holders
pro rata shall pay such excess based on the number of shares of
Registrable Securities offered by each pursuant to such registration
statement. Such Holders shall pay all Registration Expenses and
Selling Expenses directly attributable to the inclusion in the
offering of Registrable Securities being sold by the Holders,
including without limitation fees and disbursements of their own
counsel and accountants.
7.7 Assignability of Registration Rights. The
registration rights afforded Purchaser in this Article 7, shall be
assignable to a transferee of Registrable Securities from Purchaser
so long as (i) such transferee has acquired no fewer than two million
(2,000,000) shares of Registrable Securities (as adjusted from time
to time to reflect stock splits, stock dividends and similar changes
in the capitalization of Company) from Purchaser, (ii) such
transferee has agreed with Company in writing to comply with all
applicable provisions of this Article 7, and (iii) Purchaser has
otherwise complied with all provisions of this Agreement which affect
its right to sell, transfer or otherwise dispose of shares of
Registrable Securities. For a transfer of registration rights to be
effective, Purchaser shall give Company written notice at the time of
such transfer stating the name and address of the transferee and
identifying the shares with respect to which the rights under this
Article 7 are being assigned.
7.8 Indemnification.
(a) In the case of each registration effected by
Company pursuant to Section 7.2 or 7.3, to the extent permitted by
law Company ("indemnifying party") agrees to indemnify and hold
harmless each Holder, its officers and directors, and each
underwriter within the meaning of Section 15 of the Act, against any
and all losses, claims, damages, liabilities or actions to which they
or any of them may become subject under the Act or any other statute
or common law, including any amount paid in settlement of any
litigation, commenced or threatened, if such settlement is effected
with the written consent of Company, and to reimburse them for any
legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as any
such losses, claims, damages, liabilities or actions arise out of or
are based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the registration statement relating
to the sale of such shares, or any post-effective amendment thereto,
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus,
if used prior to the effective date of such registration statement,
or contained in the final prospectus (as amended or supplemented if
Company shall have filed with the Commission any amendment thereof or
supplement thereto) if used within the period during which Company is
required to keep the registration statement to which such prospectus
relates current under Section 7.4(d) (including any extensions of
such period as provided in Section 7.5.(g)), or the omission or
alleged omission to state therein (if so used) a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the indemnification agreement contained in this Section
7.8(a) shall not (x) apply to such losses, claims, damages,
liabilities or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or
alleged omission, if such statement or omission was made in reliance
upon and in conformity with information furnished to Company by such
Holder or underwriter for use in connection with preparation of the
registration statement, any preliminary prospectus or final
prospectus contained in the registration statement, or any amendment
or supplement thereto, or (y) inure to the benefit of any underwriter
or any Person controlling such underwriter, if such underwriter
failed to send or give a copy of the final prospectus to the Person
asserting the claim at or prior to the written confirmation of the
sale of such securities to such Person and if the untrue statement or
omission concerned had been corrected in such final prospectus.
(b) In the case of each registration effected by
Company pursuant to Section 7.2 or 7.3 above, each Holder and each
underwriter of the shares to be registered (each such party and such
underwriters being referred to severally as an "indemnifying party")
shall agree in the same manner and to the same extent as set forth in
Section 7.8(a) to indemnify and hold harmless Company, each Person
(if any) who controls Company within the meaning of Section 15 of the
Act, the directors of Company and those officers of Company who shall
have signed any such registration statement, with respect to any
untrue statement or alleged untrue statement in, or omission or
alleged omission from, such registration statement or any post-
effective amendment thereto or any preliminary prospectus or final
prospectus (as amended or supplemented, if amended or supplemented)
contained in such registration statement, if such statement or
omission was made in reliance upon and in conformity with information
furnished to Company by such indemnifying party for use in connection
with the preparation of such registration statement or any
preliminary prospectus or final prospectus contained in such
registration statement or any such amendment or supplement thereto.
(c) Each indemnified party will, promptly after
receipt of written notice of the commencement of an action against
such indemnified party in respect of which indemnity may be sought
under this Section 7.8, notify the indemnifying party in writing of
the commencement thereof. In case any such action shall be brought
against any indemnified party and it shall so notify an indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein, with the approval of any indemnified
parties, which approval shall not be unreasonably withheld, and to
the extent it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 7.8 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, an indemnified party
shall have the right to employ separate counsel (reasonably
satisfactory to the indemnifying party) to participate in the defense
thereof, but the fees and expenses of such counsel shall be the
expense of such indemnified party unless the named parties to such
action or proceedings include both the indemnifying party and the
indemnified party and the indemnifying party or such indemnified
party shall have been advised by counsel that there are one or more
legal defenses available to it which are different from or additional
to those available to the indemnifying party (in which case, if the
indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the reasonable expense of the
indemnifying party, the indemnifying party shall not have the right
to assume the defense of such action or proceeding on behalf of the
indemnified party, as the case may be, it being understood, however,
that the indemnifying party shall not, in connection with any such
action or proceeding or separate or substantially similar or related
action or proceeding in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate counsel at any time for
the indemnifying party and all indemnified parties, which counsel
shall be designated in writing by the Holders of a majority of the
Common Shares). If the indemnifying party withholds consent to a
settlement or proposed settlement by the indemnified party, it shall
acknowledge to the indemnified party its indemnification obligations
hereunder. The indemnity agreements in this Section 7.8 shall be in
addition to any liabilities which the indemnifying parties may have
pursuant to law.
(d) If the indemnification provided for in this
Section 7.8 from an indemnifying party is unavailable to an
indemnified party hereunder in respect to any losses, claims,
damages, liabilities or expenses referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection
with the statements or omissions which result in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such indemnifying
party or indemnified party and that party's relative intent,
knowledge, access to information supplied by such indemnifying party
or indemnified party and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other fees
or expenses reasonably incurred by such party in connection with
investigating or defending any action, suit, proceeding or claim.
ARTICLE 8. TERMINATION
8.1 Termination. This Agreement shall terminate upon the
earliest to occur of the following:
(a) Purchaser's completion of a tender offer in
accordance with Section 2.10, provided, that Purchaser's offer has
been accepted by shareholders owning not less than two-thirds (2/3)
of the outstanding Common Stock, as provided in such Section; or
(b) by mutual written agreement of Company and EMI;
or
(c) if the transactions contemplated under the
Common Share Purchase Agreement shall not have been consummated, on
August 1, 1995; or
(d) if elected by EMI, exercisable upon delivery of
written notice thereof to Company, upon the failure of Company to
comply with its obligations under this Agreement and cure of such
failure does not occur within thirty (30) days after EMI has given
written notice of such failure to Company; or
(e) if elected by Company, exercisable upon delivery
of written notice thereof to the EMI, upon the failure of Purchaser
to comply with its obligations under this Agreement and cure of such
failure does not occur within thirty (30) days after Company gives
written notice of such failure to EMI.
8.2 Extended Cure Period. Notwithstanding Sections
8.1(d) and 8.1(e), the parties agree that if the nature of the
failure requires that more than thirty (30) days are necessary to
cure, this Agreement shall not terminate if the failing party
commences a cure within the thirty (30) day period and thereafter
continuously and diligently pursues all steps necessary to cure the
failure up to and including completion of the cure; provided,
however, that such extended cure period shall terminate sixty (60)
days after the expiration of the thirty-day period after the delivery
of notice, as contemplated in Sections 8.1(d) and 8.1(e); provided,
further, that this Section 8.2 shall not apply to Company's failure
to sell at the time provided shares of Common Stock to Purchaser
under Section 2.4 or 2.6.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
9.1 Of Company. Company hereby represents and
warrants to EMI as follows:
(a) Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania, with corporate power to own its properties and to
conduct its business as now conducted.
(b) The authorized capital stock of Company consists
of (i) 30,000,000 shares of Common Stock, of which at the date of
this Agreement, 11,066,367 shares were validly-issued and
outstanding, fully paid and nonassessable and no shares were held in
Company's treasury, and (ii) 1,000,000 preferred shares, par value
$1.00 per share, of which, at the date of this Agreement, no shares
were issued and outstanding. In addition, at the date of this
Agreement, an aggregate of 597,407 shares of Common Stock (including
authorized but unissued shares and treasury shares) were reserved for
issuance pursuant to presently existing options and future options
under currently existing stock option plans. Other than the Warrant,
no other options, warrants, rights or convertible securities
providing for the issuance of Company capital stock are outstanding.
(c) Company has full legal right, power and
authority to enter into and perform this Agreement, and the execution
and delivery of this Agreement by Company and the consummation of the
transactions contemplated hereby have been duly authorized by the
Board and require no other Board or stockholder action. This
Agreement constitutes a valid and binding agreement of Company.
Neither this Agreement nor the performance of this Agreement by
Company or EMI violate Company's Restated Articles of Incorporation.
9.2 Of EMI. EMI hereby represents and warrants to
Company as follows:
(a) EMI is a corporation duly organized, validly
existing and in good standing under the laws of New York, with
corporate power to own its properties and to conduct its business as
now conducted.
(b) EMI has full legal right, power and authority to
enter into and perform this Agreement, and the execution and delivery
of this Agreement by it and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of
Directors of EMI and require no other Board of Directors or
stockholder action. This Agreement constitutes a valid and binding
agreement of EMI.
ARTICLE 10. MISCELLANEOUS
10.1 Specific Enforcement. The parties hereto
acknowledge and agree that each would be irreparably damaged if any
of the provisions of this Agreement are not performed by the other in
accordance with their specific terms or are otherwise breached. It
is accordingly agreed that each party shall be entitled to seek an
injunction or injunctions to prevent breaches of this Agreement by
the other and to enforce this Agreement and the terms and provisions
thereof specifically against the other, in addition to any other
remedy to which such aggrieved party may be entitled at law or in
equity. Any action or proceeding seeking to enforce any provision
of, or based on any right arising out of, this Agreement may be
brought against any of the parties in the courts of the Commonwealth
of Pennsylvania, County of Chester, in the United States District
Court for the Eastern District of Pennsylvania, courts of the State
of New York, New York County, or in the United States District Court
for the Southern District of New York, and each of the parties
consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party
anywhere in the world.
10.2 Severability. If any term or provision of this
Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its
regulatory policy, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
10.3 Expenses. Except as otherwise provided herein, each
party hereto shall pay its own expenses in connection with this
Agreement.
10.4 Assignment; Successors. This Agreement shall be
binding upon and shall inure to the benefit of and be enforceable by
the successors and permitted assigns of the parties hereto. Except as
otherwise provided herein, Company may not assign its rights and
delegate its duties and obligations under this Agreement without the
prior written consent of EMI, and EMI may not assign its rights or
delegate its duties and obligations under this Agreement without the
prior written consent of Company and, in the absence of such consent,
any such purported assignment or delegation shall be void; provided,
however, that EMI may assign its rights and delegate its duties and
obligations under this Agreement without such consent to a directly
or indirectly wholly owned subsidiary of EMI, or to any corporation,
partnership or other entity wholly-owned by the same person which
controls EMI, which subsidiary, corporation, partnership or other
entity (referred to herein as the "Assignee") may, following duly
authorized execution and delivery of an agreement assuming the
obligations of EMI hereunder reasonably satisfactory to Company,
accept title to the Shares and/or Warrant Shares. In the event that
EMI assigns its rights and delegates all of its obligations under
this Agreement in accordance with this Section 10.4, all references
to EMI herein shall refer to the Assignee as well as to EMI and EMI
shall be jointly and severally liable with the Assignee for the
performance of its obligations hereunder.
10.5 Amendments. This Agreement may not be modified,
amended, altered or supplemented except by a written agreement signed
by Company and EMI which shall be authorized by all necessary
corporate action of each party. Any party may waive any condition to
the obligations of any other party hereunder.
10.6 Notices. Every notice or other communication
required or contemplated by this Agreement to be given by a party
shall be delivered either by (a) personal delivery, (b) courier mail,
or (c) facsimile mail addressed to the party for whom intended at the
following address:
To Company: VWR Corporation
1310 Goshen Parkway
West Chester, PA 19380
Attention: Jerrold B. Harris
Telecopy No.: (610)436-1760
With a copy to: Drinker Biddle & Reath
1000 Westlakes Drive, Suite 300
Berwyn, PA 19312
Attention: Thomas E. Wood, Esq.
Telecopy No.: (610)993-8585
To EMI: EM Industries, Incorporated
5 Skyline Drive
Hawthorne, New York 10532
Attention: President & Chief Executive Officer
Telecopy No.: (914) 592-8775
With a copy to: Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Klaus H. Jander, Esq.
Telecopy No.: (212) 878-3025
or at such other address as the intended recipient previously shall
have designated by written notice to the other parties. Notice by
courier mail shall be effective on the date it is officially recorded
as delivered to the intended recipient by return receipt or
equivalent. All notices and other communications required or
contemplated by this Agreement delivered in person or sent by
facsimile mail shall be deemed to have been delivered to and received
by the addressee and shall be effective on the date of personal
delivery or on the date sent, respectively. Notice not given in
writing shall be effective only if acknowledged in writing by a duly
authorized representative of the party to whom it was given.
10.7 Attorneys' Fees. If any action or proceeding shall
be commenced to enforce this Agreement or any right arising in
connection with this Agreement, the prevailing party in such action
or proceeding shall be entitled to recover from the other party the
reasonable attorneys' fees, costs and expenses incurred by such
prevailing party in connection with such action or proceeding.
10.8 Integration. This Agreement, together with the
Common Share and Warrant Purchase Agreement and the Warrant, contains
the entire understanding of the parties with respect to its subject
matter. There are no restrictions, agreements, promises, warranties,
covenants or undertakings other than those expressly set forth herein
or therein with respect to any matter.
10.9 Waivers. No failure or delay on the part of either
party in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege.
All rights and remedies existing under this Agreement are cumulative
to, and not exclusive of, any rights or remedies otherwise available.
10.10 Governing Law. This Agreement shall be exclusively
governed by, construed in accordance with, and interpreted according
to the substantive law of the Commonwealth of Pennsylvania without
giving effect to the principles of conflict of laws.
10.11 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
10.12 Cooperation. The parties hereto shall each perform
such acts, execute and deliver such instruments and documents, and do
all such other things as may be reasonably necessary to accomplish
the transactions contemplated in this Agreement.
10.13 Section Headings and Captions. Section headings
and captions used in this Agreement are provided for convenience only
and shall not affect its meaning or interpretation.
IN WITNESS WHEREOF, Company and EMI have caused this
Agreement to be executed on the date first above written.
VWR CORPORATION
BY: /s/ Jerrold B. Harris
ITS: President
EM INDUSTRIES, INCORPORATED
BY: /s/ Walter W. Zywottek
ITS: President
- -31-
WARRANT
THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND NEITHER THE WARRANT, THE SECURITIES NOR ANY
INTEREST THEREIN MAY BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM. THIS WARRANT IS NOT
TRANSFERABLE EXCEPT TO AN AFFILIATE OF THE WARRANT HOLDER. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A COMMON
SHARE AND WARRANT PURCHASE AGREEMENT DATED FEBRUARY 27, 1995 AND A
STANDSTILL AGREEMENT DATED FEBRUARY 27, 1995 (COPIES OF WHICH
AGREEMENTS ARE ON FILE WITH THE SECRETARY OF THE COMPANY) WHICH
PROVIDE, AMONG OTHER THINGS, FOR CERTAIN RESTRICTIONS ON TRANSFER
THEREOF. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH SUCH
AGREEMENTS SHALL BE VOID.
Void after 5:00 P.M. (Eastern Time)
April 13, 1998, except as otherwise provided herein.
Series A No. 1 Warrant to Purchase
967,015 Common Shares
Date: April 13, 1995
WARRANT
TO PURCHASE COMMON SHARES OF
VWR CORPORATION
THIS CERTIFIES that EM LABORATORIES, INCORPORATED (herein
called "Warrant Holder") is entitled to purchase from VWR Corporation
(herein called the "Company"), a corporation organized and existing
under the laws of Pennsylvania, at any time after April 13, 1995 and
until 5:00 P.M. (Eastern Time) on April 13, 1998, Nine Hundred Sixty-
Seven Thousand Fifteen (967,015) fully paid and nonassessable common
shares of the Company, $1.00 par value per share (the "Common
Shares"), subject to adjustment as provided herein, at a purchase
price of $11.00 per share.
1. Definitions. For the purpose of the Warrants:
(a) "Capital Shares" shall mean the Company's Common
Shares, and any shares of any other class, whether now or hereafter
authorized, which has the right to participate in the distribution of
earnings and assets of the Company without limit as to amount or
percentage.
(b) "Exercise Period" shall mean the period
beginning on April 13, 1995 and ending April 13, 1998.
(c) "Purchase Agreement" means the Common Share and
Warrant Purchase Agreement dated February 27, 1995 between the
Company and the Warrant Holder.
(d) "Warrants of this Series" or "Warrants" shall
mean the original Warrant to purchase up to 967,015 Common Shares of
the Company issued by the Company pursuant to the Purchase Agreement
and any and all Warrants which are issued in exchange or substitution
for any outstanding Warrant pursuant to the terms of that Warrant.
(e) "Warrant Price" shall mean the price per share
at which Common Shares of the Company are purchasable hereunder, as
such prices may be adjusted from time to time hereunder.
(f) "Warrant Shares" shall mean the shares purchased
upon exercise of Warrants.
(g) "Additional Capital Shares" shall mean all
Capital Shares issued by the Company except:
(i) the 1,818,181 Common Shares issued
pursuant to the Purchase Agreement and the Warrant Shares;
(ii) 11,075,376 Common Shares of the
Company outstanding on the date of original issuance of this
Warrant;
(iii) those Common Shares of the Company
issuable upon the exercise of options issued to officers,
directors and employees on the date of original issuance of this
Warrant;
(iv) the Rights to purchase Common Shares
issued under and pursuant to the Rights Agreement dated as of
May 20, 1988 between the Company and First Interstate Bank of
Washington, N.A. (as successor to the First Jersey National
Bank), as Rights Agent, as such agreement may from time to time
be amended; and
(v) shares issued to the Warrant Holder
under the Standstill Agreement between the Company and the
Warrant Holder dated February 27, 1995 (the "Standstill
Agreement").
2. Method of Exercise of Warrants. This Warrant may be
exercised in whole or in part (but not as to fractional shares) on
one or more occasions during the Exercise Period by the surrender of
the Warrant, with the Purchase Agreement attached hereto as Rider A
properly completed and duly executed by the Warrant Holder, at the
principal office of the Company at 1310 Goshen Parkway, West Chester,
Pennsylvania 19380, or such other location which shall at that time
be the principal office of the Company (the "Principal Office"), and
upon payment to it of the purchase price for the shares to be
purchased upon such exercise. The purchase price may be paid, at the
holder's option, by delivering a certified check or bank draft or
immediately available funds to the order of the Company for the
entire purchase price. The Warrant Holder shall be treated for all
purposes as the holder of such shares as of the close of business on
the date of exercise and certificates for the shares so purchased
shall be delivered to the Warrant Holder within a reasonable time,
not exceeding thirty (30) days, after such exercise. Unless this
Warrant has expired, a new Warrant of like tenor and for such number
of shares as the holder of this Warrant shall direct, representing in
the aggregate the right to purchase a number of shares with respect
to which this Warrant shall not have been executed shall also be
issued to the Warrant Holder within such time.
3. Exchange. This Warrant is exchangeable, upon the
surrender thereof by the holder thereof at the Principal Office of
the Company, for new Warrants of like tenor registered in such
holder's name and representing in the aggregate the right to purchase
the number of shares purchasable under the Warrant being exchanged,
each of such new Warrants to represent the right to subscribe for and
purchase such number of shares as shall be designated by said holder
at the time of such surrender.
4. Restrictions on Transfer. This Warrant has not been
registered under the Securities Act of 1933, as amended, or any state
securities laws, and may not be sold or otherwise transferred in the
absence of such registration or an exemption therefrom. This Warrant
is not transferable except to an affiliate of the Warrant Holder.
Any sale or other transfer not in compliance herewith shall be void.
5. Certain Covenants of the Company. The Company
covenants and agrees that all shares which may be issued upon the
exercise of Warrants of the Series, will, upon issuance, be duly and
validly issued, fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issue thereof; and will, upon
issuance, be listed on the NASDAQ National Market or on such other
national securities exchange, if any, on which the other outstanding
shares of the Company are then listed, and without limiting the
generality of the foregoing, the Company covenants and agrees that it
will from time to time take all such action as may be required to
assure that the par value per share of the Common Shares is at all
times equal to or less than the then effective purchase price per
share of the Common Shares issuable pursuant to the Warrants. The
Company further covenants and agrees that during the period within
which the rights represented by the Warrants may be exercised, the
Company will at all times have authorized, and reserved for the
purpose of issuance upon exercise of the purchase rights evidenced by
the Warrants, a sufficient number of Common Shares to provide for the
exercise of the rights represented by the Warrants.
6. Adjustment of Purchase Price and Number of Shares.
The number and kind of securities purchasable upon the exercise of
the Warrants of this Series and the Warrant Price shall be subject to
adjustment from time to time upon the happening of certain events as
follows:
(a) Reclassification, Consolidation, Merger or
Mandatory Share Exchange. At any time while Warrants of this Series
remain outstanding and unexpired, in case of any reclassification or
change of outstanding securities issuable upon exercise of the
Warrants (other than a change in par value, or from par value to no
par value per share, or from no par value per share to par value or
as a result of a subdivision or combination of outstanding securities
issuable upon the exercise of the Warrants) or in case of any
consolidation, merger or mandatory share exchange of the Company with
or into another corporation (other than a merger or mandatory share
exchange with another corporation in which the Company is a
continuing corporation and which does not result in any
reclassification or change, other than a change in par value, or from
par value to no par value per share, or from no par value per share
to par value, or as a result of a subdivision or combination of
outstanding securities issuable upon the exercise of the Warrants),
or in the case of any sale or transfer to another corporation of the
property of the Company as an entirety or substantially as an
entirety, the Company, or such successor or purchasing corporation,
as the case may be, shall, without payment of any additional
consideration therefore, execute new Warrants providing that the
Warrant Holder shall have the right to exercise such new Warrants
(upon terms not less favorable to the Warrant Holder than those then
applicable to the Warrants) and to receive upon such exercise, in
lieu of each Common Share theretofore issuable upon exercise of the
Warrants, the kind and amount of shares of stock, other securities,
money or property receivable upon such reclassification, change,
consolidation, merger, mandatory share exchange, sale or transfer by
the holder of one Common Share issuable upon exercise of the Warrants
had the Warrants been exercised immediately prior to such
reclassification, change, consolidation, merger, mandatory share
exchange or sale or transfer. Such new Warrants shall provide for
adjustments which shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Section 6. The provisions of
this subsection 6(a) shall similarly apply to successive
reclassifications, changes, consolidations, mergers, mandatory share
exchanges and sales and transfers.
(b) Subdivision or Combination of Shares. If the
Company at any time while Warrants of this Series remain outstanding
and unexpired, shall subdivide or combine its Capital Shares, the
Warrant Price shall be proportionately reduced, in case of
subdivision of such shares, as of the effective date of such
subdivision, or, if the Company shall take a record of holders of its
Capital Shares for the purpose of so subdividing, as of such record
date, whichever is earlier, or shall be proportionately increased, in
the case of combination of such shares, as of the effective date of
such combination, or, if the Company shall take a record of holders
of its Capital Shares for the purpose of so combining, as of such
record date, whichever is earlier.
(c) Stock Dividends. If the Company at any time
while Warrants of this Series are outstanding and unexpired shall pay
a dividend in its Capital Shares, or make other distribution of its
Capital Shares, then the Warrant Price shall be adjusted, as of the
date the Company shall take a record of the holders of its Capital
Shares for the purpose of receiving such dividend or other
distribution (or if no such record is taken, as at the date of such
payment or other distribution), to that price determined by
multiplying the Warrant Price in effect immediately prior to such
payment or other distribution by a fraction (a) the numerator of
which shall be the total number of Capital Shares outstanding
immediately prior to such dividend or distribution, and (b) the
denominator of which shall be the total number of Capital Shares
outstanding immediately after such dividend or distribution. The
provisions of this subsection 6(c) shall not apply under any of the
circumstances for which an adjustment is provided in subsections 6(a)
or 6(b).
(d) Issuance of Additional Capital Shares. If the
Company at any time while the Warrants remain outstanding and
unexpired shall issue any Additional Capital Shares (otherwise than
as provided in the foregoing subsections (a) through (c) above) at a
price per share less, or for other consideration lower, than the
Warrant Price in effect immediately prior to such issuance, or
without consideration, then upon such issuance the Warrant Price
shall be reduced to that price determined by multiplying the Warrant
Price in effect immediately prior to such event by a fraction:
(i) the numerator of which shall be the
number of Common Shares outstanding immediately prior to the
issuance of such Additional Common Shares plus the number of
Common Shares which the aggregate consideration for the total
number of such Additional Common Shares so issued would purchase
at the then effective Warrant Price, and;
(ii) the denominator of which shall be the
number of Common Shares outstanding immediately prior to the
issuance of such Additional Common Shares plus the number of
such Additional Common Shares so issued.
The provisions of this subsection 6(d) shall not
apply under any of the circumstances for which an adjustment is
provided in subsections 6(a), 6(b), or 6(c). No adjustment of a
Warrant Price shall be made under this subsection 6(d) upon the
issuance of any Additional Capital Shares which are issued pursuant
to the exercise of any warrants, options or other subscription or
purchase rights or pursuant to the exercise of any conversion or
exchange rights in any convertible or exchangeable securities if any
such adjustments shall previously have been made upon the issuance of
any such warrants, options or other rights or upon the issuance of
any convertible or exchangeable securities (or upon the issuance of
any warrants, options or any rights therefor) pursuant to subsections
6(e) or 6(f) hereof.
(e) Issuance of Warrants, Options or Other Rights.
If the Company at any time while the Warrants remain outstanding and
unexpired shall issue any warrants, options or other rights to
subscribe for or purchase any Additional Capital Shares and the price
per share for which Additional Capital Shares may at any time
thereafter be issuable pursuant to such warrants, options or other
rights shall be less than the Warrant Price in effect at the
hereunder immediately prior to such issuance, then upon such issuance
the Warrant Price shall be adjusted as provided in subsection 6(d)
hereof on the basis that:
(i) the maximum number of Additional
Common Shares issuable pursuant to all such warrants, options or
other rights shall be deemed to have been issued as of the date
of actual issuance of such warrants, options or other rights,
and
(ii) the aggregate consideration for such
maximum number of Additional Capital Shares issuable pursuant to
such warrants, options or other rights, shall be deemed to be
the consideration received by the Company for the issuance of
such warrants, options, or other rights plus the minimum
consideration to be received by the Company for the issuance of
Additional Capital Shares pursuant to such warrants, options, or
other rights.
(f) Issuance of Convertible or Exchangeable
Securities. If the Company at any time while the Warrants remain
outstanding and unexpired shall issue any securities convertible into
or exchangeable for Common Shares and the consideration per share for
which Additional Capital Shares may at any time thereafter be
issuable pursuant to the terms of such convertible or exchangeable
securities shall be less than the Warrant Price in effect immediately
prior to such issuance, then upon such issuance the Warrant Price
shall be adjusted as provided in subsection 6(d) hereof on the basis
that (i) the maximum number of Additional Capital Shares necessary to
effect the conversion or exchange of all such convertible or
exchangeable securities shall be deemed to have been issued as of the
date of issuance of such convertible or exchangeable securities, and
(ii) the aggregate consideration for such maximum number of
Additional Capital Shares shall be deemed to be the consideration
received by the Company for the issuance of such convertible or
exchangeable securities plus the minimum consideration received by
the Company for the issuance of such Additional Capital Shares
pursuant to the terms of such convertible or exchangeable securities.
No adjustment of the Warrant Price shall be made under this
subsection upon the issuance of any convertible or exchangeable
securities which are issued pursuant to the exercise of any warrants,
options or other subscription or purchase rights therefor, if any
such adjustment shall previously have been made upon the issuance of
such warrants, options or other rights pursuant to subsection 6(e)
hereof.
(g) Adjustment of Number of Shares. Upon each
adjustment in a Warrant Price pursuant to any provisions of this
Section 6, the number of Common Shares purchasable hereunder at that
Warrant Price shall be adjusted, to the nearest one hundredth of a
whole share, to the product obtained by multiplying such number of
shares purchasable immediately prior to such adjustment in the
Warrant Price by a fraction, the numerator of which shall be the
Warrant Price immediately prior to such adjustment and the
denominator of which shall be the Warrant Price immediately
thereafter.
(h) Liquidating Dividends, Etc. If the Company at
any time while Warrants of this Series are outstanding and unexpired
makes a distribution of its assets or evidences of indebtedness to
the holders of its Capital Shares as a dividend in liquidation or by
way of return of capital or other than as a dividend payable out of
earnings or surplus legally available for dividends under applicable
law or any distribution to such holders made in respect of the sale
of all or substantially all of the Company's assets (other than under
the circumstances provided for in the foregoing subsections (a)
through (g)), the Warrant Holder shall be entitled to receive upon
the exercise hereof, in addition to the Common Shares receivable upon
such exercise, and without payment of any consideration other than
the Warrant Price, an amount in cash equal to the value of such
distribution per Common Share multiplied by the number of Common
Shares which, on the record date for such distribution, are issuable
upon exercise of this Warrant (with no further adjustment being made
following any event which causes a subsequent adjustment in the
number of Common Shares issuable upon the exercise hereof), and an
appropriate provision therefor shall be made a part of any such
distribution. The value of a distribution which is paid in other
than cash shall be determined in good faith by the Board of
Directors.
(i) Other Provisions Applicable to Adjustments Under
this Section. The following provisions will be applicable to the
making of adjustments in a Warrant Price hereinabove provided in this
Section 6:
(i) Computation of Consideration. To the
extent that any Additional Capital Shares or any convertible or
exchangeable securities or any warrants, options or other rights
to subscribe for or purchase any Additional Capital Shares or
any convertible or exchangeable securities shall be issued for a
cash consideration, the consideration received by the Company
therefor shall be deemed to be the amount of the cash received
by the Company therefor, or, if such Additional Capital Shares
or convertible or exchangeable securities are offered by the
Company for subscription, the subscription price, or, of such
Additional Capital Shares or convertible or exchangeable
securities are sold to underwriters or dealers for public
offering without a subscription offering, or through
underwriters or dealers for public offering without a
subscription offering, the initial public offering price, in any
such case excluding any amounts paid or incurred by the Company
for and in the underwriting of, or otherwise in connection with
the issue thereof. To the extent that such issuance shall be
for a consideration other than cash, then, the amount of such
consideration shall be deemed to be the fair value of such
consideration at the time of such issuance as determined in good
faith by the Company's Board of Directors. The consideration
for any Additional Capital Shares issuable pursuant to any
warrants, options or other rights to subscribe for or purchase
the same shall be the consideration received by the Company for
issuing such warrants, options or other rights, plus the
additional consideration payable to the Company upon the
exercise of such warrants, options or other rights. The
consideration for any Additional Capital Shares issuable
pursuant to the terms of any convertible or exchangeable
securities shall be the consideration paid or payable to the
Company in respect of the subscription for or purchase of such
convertible or exchangeable securities, plus the additional
consideration, if any, payable to the Company upon the exercise
of the right of conversion or exchange in such convertible or
exchangeable securities. In case of the issuance at any time of
any Additional Capital Shares or convertible or exchangeable
securities in payment or satisfaction of any dividend upon any
class of stock preferred as to dividends in a fixed amount, the
Company shall be deemed to have received for such Additional
Capital Shares or convertible or exchangeable securities a
consideration equal to the amount of such dividend so paid or
satisfied.
(ii) Readjustment of Warrant Price. Upon
the expiration of the right to convert or exchange any
convertible or exchangeable securities, or upon the expiration
of any rights, options or warrants, the issuance of which
convertible or exchangeable securities, rights, options or
warrants effected an adjustment in a Warrant Price, if any such
convertible or exchangeable securities shall not have been
converted or exchanged, or if any such rights, options or
warrants shall not have been exercised, the number of Capital
Shares deemed to be issued and outstanding by reason of the fact
that they were issuable upon conversion or exchange of any such
convertible or exchangeable securities or upon exercise of any
such rights, options, or warrants shall no longer be computed as
set forth above, and such Warrant Price shall forthwith be
readjusted and thereafter be the price which it would have been
(but reflecting any other adjustments in the Warrant Price made
pursuant to the provisions of this Section 6 after the issuance
of such convertible or exchangeable securities, rights, options
or warrants) had the adjustment of the Warrant Price made upon
the issuance or sale of such convertible or exchangeable
securities or issuance of rights, options or warrants been made
on the basis of the issuance only of the number of Additional
Capital Shares actually issued upon conversion or exchange of
such convertible or exchangeable securities, or upon the
exercise of such rights, options or warrants, and thereupon only
the number of Additional Capital Shares actually so issued, if
any, shall be deemed to have been issued and only the
consideration actually received by the Company (computed as set
forth in subsection (i) hereof) shall be deemed to have been
received by the Company. If the purchase price provided for in
any rights, options or warrants, or the additional consideration
(if any) payable upon the conversion or exchange of any
convertible or exchangeable securities, or the rate at which any
convertible or exchangeable securities are convertible into or
exchangeable for Common Shares changes at any time (other than
under or by reason of provisions designed to protect against
dilution), the Warrant Price in effect at the time of the change
shall be adjusted to the Warrant Price that would have been in
effect at such time had such rights, options, warrants or
convertible or exchangeable securities still outstanding
provided for such changed purchase price, additional
consideration or conversion rate, as the case may be, at the
time initially granted, issued or sold.
(iii) Treasury Shares. The number of
Capital Shares at any time outstanding shall not include any
shares thereof then directly or indirectly owned or held by or
for the account of the Company or any subsidiary.
(iv) Other Action Affecting Capital
Shares. In case after the date hereof the Company shall take
any action affecting the outstanding number of Capital Shares,
other than an action described in any of the foregoing
subsections (a) to (h) hereof, inclusive, which in the opinion
of the Company's Board of Directors would have a materially
adverse effect upon the rights of the Warrant Holder, the
Warrant Price shall be adjusted in such manner and at such time
as the Board or Directors on the advice of the Company's
independent public accountants may in good faith determine to be
equitable in the circumstances.
7. Notice of Adjustments. Whenever any of the Warrant
Price or the number of Common Shares purchasable under the terms of
the Warrants at that Warrant Price shall be adjusted pursuant to
Section 6 hereof, the Company shall promptly make a certificate
signed by its President or a Vice President and by its Treasurer or
Assistant Treasurer or its Secretary or Assistant Secretary, setting
forth in reasonable detail the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was
calculated (including a description of the basis on which the
Company's Board of Directors made any determination hereunder), and
the Warrant Price and number of Common Shares purchasable at that
Warrant Price after giving effect to such adjustment, and shall
promptly cause copies of such certificate to be mailed (by first
class and postage prepaid) to the Warrant Holder.
In the event the Company shall, at a time when the
Warrants are exercisable, take any action which pursuant to
paragraphs (a) through (g) of Section 6 may result in an adjustment
of any of the Warrant Price or the number of Common Shares
purchasable at that Warrant Price upon exercise of the Warrants, the
Company will give to the Warrant Holder at its last address known to
the Company written notice of such action ten (10) days in advance of
its effective date in order to afford to the Warrant Holder an
opportunity to exercise the Warrants and to purchase Common Shares of
the Company prior to such action becoming effective.
8. Payment of Taxes. All Common Shares issued upon the
exercise of a Warrant shall be validly issued, fully paid and
nonassessable, and the Company shall pay all taxes and other
governmental charges that may be imposed in respect of the issue or
delivery thereof. 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 Common Shares in any
name other than that of the registered holder of the Warrant
surrendered in connection with the purchase of such shares, and in
such case the Company shall not be required to issue or deliver any
stock certificate until such tax or other charge has been paid or it
has been established to the Company's satisfaction that no tax or
other charge is due.
9. Fractional Shares. No fractional Common Shares will
be issued in connection with any purchases hereunder but in lieu of
such fractional shares, the Company shall make a cash refund therefor
equal in amount to the product of the applicable fraction multiplied
by the Warrant Price paid by the Warrant Holder for its Warrant
Shares upon such exercise.
10. Registration Rights. The registered holder of the
Warrant Shares shall have certain rights to request the Company to
include the Warrant Shares held by it in a registration statement of
the Company under the Securities Act of 1933, as amended. The holder
hereof is referred to the Standstill Agreement for a statement of the
rights of the holder of Warrant Shares to request registration
thereof under the Securities Act of 1933, as amended.
11. Loss, Theft, Destruction or Mutilation. Upon receipt
by the Company of evidence reasonably satisfactory to it that any
Warrant of this Series has been mutilated, destroyed, lost or stolen,
and in the case of any destroyed, lost or stolen Warrant, a bond of
indemnity reasonably satisfactory to the Company, or in the case of a
mutilated Warrant, upon surrender and cancellation thereof, the
Company will execute and deliver in the Warrant Holder's name, in
exchange and substitution for the Warrant so mutilated, destroyed,
lost or stolen, a new Warrant of like tenor substantially in the form
thereof with appropriate insertions and variations.
12. Computations. The certificate of any firm of
independent public accountants of recognized standing selected by the
Company shall be conclusive evidence of the correctness of any
computation under Warrants of this Series.
13. Restrictions on Transfer. Any Warrant Shares issued
upon the exercise of the Warrants will be issued subject to the
restrictions on transfer contained in the Purchase Agreement and
Standstill Agreement, and any Warrant or certificate for Warrant
Shares issued in exchange or substitution for an outstanding Warrant
or outstanding certificate for Warrant Shares shall bear the
restrictive legend(s), if any, on such outstanding Warrant or
outstanding certificate for Warrant Shares as required by the
Purchase Agreement and the Standstill Agreement, unless under the
terms of such agreements such legend(s) may be removed therefrom.
14. Headings. The descriptive headings of the several
sections of these Warrants are inserted for convenience only and do
not constitute a part of these Warrants.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed by its duly authorized officer under its corporate seal,
attested by its duly authorized officer, on the date of this Warrant.
VWR CORPORATION
[CORPORATE SEAL]
By:/s/ Jerrold B. Harris
Name: Jerrold B. Harris
Title: President
Attest:/s/ Deborah A. Corr
Name: Deborah A. Corr
Title: Assistant Treasurer
Rider A
PURCHASE AGREEMENT
Date:
TO;
The undersigned, pursuant to the provisions set forth in
the attached Warrant, hereby agrees to purchase
Common Shares covered by such Warrant, and makes payment herewith in
full therefor at the price per share provided by this Warrant.
If the purchase of Common Shares contemplated hereby
represents fewer than all of the Common Shares represented by the
original Warrant, the Company agrees to issue a substitute Warrant
representing the remaining Common Shares subject to the Warrant
Holder's right of exercise pursuant to the terms of the Warrant.
Signature:
Address:
- -11-
___________________________________________
COMMON SHARE AND WARRANT PURCHASE AGREEMENT
___________________________________________
by and between
VWR CORPORATION
and
EM INDUSTRIES, INCORPORATED
February 27, 1995
TABLE OF CONTENTS
Page
ARTICLE 1. SALE AND PURCHASE OF SHARES; CLOSING 1
1.1 Subscription, Sale and Purchase of the Common
Shares and Warrant. 1
1.2 Closing 1
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 2
2.1 Organization and Good Standing 2
2.2 Authorization 2
2.3 No Conflict with Law or Documents 3
2.4 Capital Stock of the Company 3
2.5 Valid Issuance of the Shares and Warrant Shares 3
2.6 Consents and Approvals 4
2.7 Private Offering 4
2.8 Additional Securities Law Matters 4
2.9 Articles of Incorporation and Bylaws 4
2.10 Subsidiaries 4
2.11 SEC Filings 4
2.12 Financial Statements 5
2.13 Documents Delivered 6
2.14 Proceedings and Litigation 6
2.15 Insurance 6
2.16 Intellectual Property Rights 6
2.17 Prior Registration Rights 6
2.18 Environmental Matters 7
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
3.1 Beneficial Ownership 7
3.2 Principal Place of Business 7
3.3 Purchase Without View to Distribute 7
3.4 Restrictions on Transfer 7
3.5 Access to Information 8
3.6 Additional Representations of the Purchaser 8
3.7 Legends 8
3.8 Proceedings and Litigation 8
ARTICLE 4. CONDITIONS PRECEDENT TO THE PURCHASER'S
OBLIGATIONS 9
4.1 Representations and Warranties 9
4.2 Performance 9
4.3 Opinion of Counsel 9
4.4 HSR Act 9
4.5 Standstill Agreement 9
4.6 No Proceeding or Litigation 9
4.7 Disclosure Letter 9
4.8 Approval by Principal Trading Market 9
4.9 Exon-Florio Notice 10
ARTICLE 5. CONDITIONS PRECEDENT TO THE COMPANY'S
OBLIGATIONS 10
5.1 Representations and Warranties 10
5.2 Performance 10
5.3 No Proceeding or Litigation 10
5.4 HSR Act 10
5.5 Standstill Agreement 10
5.6 Opinion of Counsel 10
5.7 Approval by Principal Trading Market 10
5.8 Exon-Florio Notice 11
ARTICLE 6. HSR ACT 11
6.1 Filings 11
ARTICLE 7. COVENANTS OF THE COMPANY AND THE PURCHASER 11
7.1 Covenants of the Company 11
7.2 No Purchases Before Closing 11
ARTICLE 8. COMPLIANCE WITH 1933 ACT; RESTRICTIONS ON
TRANSFERABILITY OF SHARES AND WARRANT SHARES 11
8.1 Compliance with 1933 Act 11
8.2 Restrictive Legend 12
8.3 Restrictions on Transferability 12
8.4 Termination of Restrictions on Transferability 12
ARTICLE 9. SURVIVAL OF COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES 13
ARTICLE 10. INDEMNIFICATION 13
ARTICLE 11. TERMINATION 14
11.1 Termination 14
11.2 Effect of Termination 15
ARTICLE 12. MISCELLANEOUS 15
12.1 Owner of Shares 15
12.2 Broker or Finder 15
12.3 Specific Enforcement 15
12.4 Severability 16
12.5 Expenses 16
12.6 Assignment; Successors 16
12.7 Amendments 16
12.8 Notices 16
12.9 Attorneys' Fees 17
12.10 Integration 17
12.11 Waivers 17
12.12 Governing Law 18
12.13 Counterparts 18
12.14 Cooperation 18
EXHIBIT A Form of Warrant
EXHIBIT B Form of Standstill Agreement
EXHIBIT C Form of Opinion of Counsel to Company
EXHIBIT D Form of Opinion of Counsel to the Purchaser
COMMON SHARE AND WARRANT PURCHASE AGREEMENT (the
"Agreement") made this 27th day of February, 1995 by and between VWR
CORPORATION ("the Company"), a Pennsylvania corporation, and EM
INDUSTRIES, INCORPORATED ("the Purchaser"), a New York corporation.
BACKGROUND
WHEREAS, the Company wishes to issue and sell to
the Purchaser an aggregate of 1,818,181 shares of the authorized but
unissued common shares, $1.00 par value, of the Company (the "Common
Shares") and a common share purchase warrant (the "Warrant") in the
form attached hereto as Exhibit A for the purchase of additional
common shares as provided herein and therein; and
WHEREAS, the Purchaser wishes to purchase the
Common Shares and the Warrant on the terms and subject to the
conditions as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants contained in this Agreement, and intending
to be legally bound hereby, the parties agree as follows:
ARTICLE 1. SALE AND PURCHASE OF SHARES; CLOSING
1.1 Subscription, Sale and Purchase of the
Common Shares and Warrant.
(a) Upon the terms and subject to the
conditions of this Agreement, on the Closing Date (as hereinafter
defined) the Company shall issue, sell and deliver to the Purchaser,
and the Purchaser shall purchase and take from the Company, an
aggregate of 1,818,181 of the Company's Common Shares (the "Shares")
and the Warrant for the aggregate cash purchase price of $19,999,991.
(b) The number of Common Shares the Purchaser
shall be entitled to purchase from the Company pursuant to the
Warrant shall be the sum of 965,000 plus 20.1% of the aggregate
number of Common Shares (other than the Shares), if any, issued by
the Company between the date of this Agreement and up to and
including the Closing Date.
1.2 Closing.
(a) The closing of the purchase and sale of
the Shares and Warrant (the "Closing") pursuant to this Agreement
shall take place on the later of five (5) business days after
termination or expiration of the waiting period under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act")
or August 1, 1995, at the offices of Drinker Biddle & Reath, 1000
Westlakes Drive, Berwyn, Pennsylvania, commencing at 10:00 a.m.,
local time or at such other date, time or place as may be agreed to
by the Company and the Purchaser (the "Closing Date"). Subject to
Article 11, failure to consummate the Closing shall not result in the
termination of this Agreement or relieve any person of any obligation
hereunder.
(b) At the Closing the Company shall deliver
to the Purchaser stock certificates representing the Shares and a
Warrant in the form attached hereto as Exhibit A, duly executed by
the Company, registered in such Purchaser's name, and against such
deliveries the Purchaser will deliver to the Company, by wire
transfer to a bank in the United States specified by the Company for
the account of the Company, funds, in U.S. dollars, in the amount of
$19,999,991.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
Other than as set forth in the Disclosure Letter
(as hereinafter defined), the Company represents and warrants to the
Purchaser as follows:
2.1 Organization and Good Standing. The
Company is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania and has
all requisite power and authority, and all necessary licenses and
permits, to own and lease its properties and assets and to conduct
its business as now conducted. Each Subsidiary (as defined in
Section 2.9) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation
and has all requisite power and authority, and all necessary licenses
and permits, to own and lease its properties and assets and to
conduct its business as now conducted. The Company and its
Subsidiaries are each qualified to do business as a foreign
corporation and are in good standing in all states where the conduct
of their respective businesses or their ownership or leasing of
property requires such qualification, except where the failure to so
qualify would not have a material adverse effect on the Company's or
any Subsidiary's business, properties, assets, prospects, operations
or condition (financial or otherwise).
2.2 Authorization. The Company has all
requisite power and authority to execute and deliver this Agreement
and to carry out the transactions contemplated hereby. The
execution, delivery and performance by the Company of this Agreement
have been duly authorized by all requisite corporate action, and this
Agreement has been duly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency,
moratorium, reorganization and other similar laws relating to or
affecting the enforcement of creditors' rights generally, and except
that the availability of specific performance, injunctive relief or
other equitable remedies is subject to the discretion of the court
before which any such proceeding may be brought.
2.3 No Conflict with Law or Documents. The
execution, delivery and performance of this Agreement and the Warrant
by the Company will not violate any provision of law, any rule or
regulation of any governmental authority, or any judgment, decree or
order of any court binding on the Company, and will not conflict with
or result in any breach of any of the terms, conditions or provisions
of, or constitute a default under, or result in the creation of any
lien, security interest, charge or encumbrance upon, any of the
properties, assets or outstanding stock of the Company under its
Articles of Incorporation or Bylaws, or any indenture, mortgage,
lease, agreement or other instrument to which the Company is a party
or by which it or any of its properties is bound.
2.4 Capital Stock of the Company.
(a) The authorized capital stock of the
Company consists of: (i) 30,000,000 Common Shares, $1.00 par value
per share, of which, prior to the issuance of any of the Shares
pursuant to this Agreement, (A) 11,066,367 shares have been duly and
validly issued (of which 11,066,367 are currently outstanding, fully
paid and nonassessable and none are treasury shares), (B) 597,407
shares have been reserved for issuance upon the awarding of stock
grants or the exercise of options granted or to be granted by the
Company (the "Options" and "Option Shares") under the Company's 1986
Long-Term Incentive Stock Plan, as amended to date (the "Existing
Stock Plan"), and (C) an adequate number of shares has been reserved
for issuance upon the exercise of the Warrant, and (ii) 1,000,000
Preferred Shares, $1.00 par value per share, of which none is
presently issued and outstanding. Except for any rights to acquire
securities of the Company pursuant to the Rights Agreement (as
defined in Section 2.4(b)) or the Standstill Agreement between the
parties hereto in the form attached hereto as Exhibit B (the
"Standstill Agreement") and as otherwise described in this Section
2.4, there are no preemptive or similar rights to purchase or
otherwise acquire shares of capital stock of the Company pursuant to
any provision of law or the Articles of Incorporation or Bylaws of
the Company or by agreement or otherwise.
(b) The Rights Agreement, dated as of May 20,
1988 (the "Rights Agreement") between the Company and First
Interstate Bank of Washington, N.A., as Rights Agent, as amended, is
in full force and effect. Assuming the accuracy of the Purchaser's
representations and warranties contained in Article 3 herein, the
Purchaser's acquisition of the Shares, the Warrant and the Warrant
Shares, as contemplated herein, will not cause the Purchaser to
become an "Acquiring Person," as defined in the Rights Agreement.
2.5 Valid Issuance of the Shares and Warrant
Shares. The Shares when issued, sold and delivered to the Purchaser
in accordance with this Agreement will be duly and validly issued,
fully paid, non-assessable and free and clear of all liens, and the
Warrant Shares, when issued upon exercise of the Warrant (assuming
payment therefor has been made in accordance with the terms of the
Warrant), will be duly and validly issued, fully paid, nonassessable
and free and clear of all liens.
2.6 Consents and Approvals. Except for
compliance with the notification or other requirements of the NASDAQ
System and the HSR Act, and the rules and regulations promulgated
thereunder and filings under Federal and applicable state securities
laws, no permit, consent, approval or authorization of, or
declaration to or filing with, any federal, state, local or foreign
governmental or regulatory authority or other person, not made or
obtained, is required in connection with the execution or delivery of
this Agreement or the Warrant by the Company, the offer, issuance,
sale or delivery of the Shares or the Warrant Shares, or the carrying
out by the Company of the other transactions contemplated hereby.
2.7 Private Offering. Assuming the accuracy
of the Purchaser's representations and warranties contained in
Article 3 herein, the offer, issuance and delivery to the Purchaser
pursuant to the terms of this Agreement of the Shares are exempt from
registration under the Securities Act of 1933, as amended (the "1933
Act"). The Purchaser shall have certain rights to registration of
the Shares and the Warrant Shares for resale, as provided in the
Standstill Agreement.
2.8 Additional Securities Law Matters. None
of the Company or any of its Affiliates (as defined in the Standstill
Agreement), or any Person acting on its or their behalf, has offered
to sell or sold any Common Stock by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the 1933 Act that would subject the issuance and sale of the
Shares, the Warrant or the Warrant Shares to the registration
provisions of the 1933 Act.
2.9 Articles of Incorporation and Bylaws. The
copies of the Company's Articles of Incorporation and Bylaws, each as
amended to date and as attached to the Disclosure Letter, are true
and correct copies of such documents and are in full force and
effect.
2.10 Subsidiaries. The disclosure letter from
the Company to the Purchaser of even date herewith (the "Disclosure
Letter") states the name of each of the Company's subsidiaries
(collectively, the "Subsidiaries"). The Disclosure Letter also
states each Subsidiary's jurisdiction of incorporation and the
percentage of its voting stock owned by the Company and each other
Subsidiary and the name of each of the Company's corporate or joint
venture Affiliates (other than Subsidiaries) and the nature of the
affiliation.
2.11 SEC Filings.
(a) The Company has delivered to the Purchaser
or has made available, prior to the date hereof, true and correct
copies of (i) its Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, its Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1994, June 30, 1994 and September 30, 1994,
its 1993 Annual Report to Stockholders, and its Proxy Statement for
its 1994 Annual Meeting of Stockholders. All documents described in
this Section 2.11 are hereinafter referred to as the "SEC Reports."
(b) The SEC Reports are all of the reports the
Company has been required to file with the Commission since December
31, 1993. The SEC Reports when filed complied in all material
respects with the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and all applicable legal requirements and did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
2.12 Financial Statements.
(a) (i) The audited consolidated balance
sheets and related audited statements of consolidated income, cash
flow and stockholders' equity of the Company and its Subsidiaries as
at and for the three fiscal years of the Company ended December 31,
1993, (ii) the unaudited consolidated balance sheet and related
unaudited consolidated statements of income, cash flow and
stockholders' equity of the Company and its Subsidiaries, as at and
for the three months ended March 30, 1994, June 30, 1994 and
September 30, 1994, in each case together with the notes thereto,
copies of all of which have heretofore been furnished to the
Purchaser or have been made available, present fairly in all material
respects the consolidated financial position of the Company and its
Subsidiaries at such dates and the consolidated results of their
operations and their consolidated cash flows for the periods then
ended, and (iii) the consolidated balance sheet (the "Balance Sheet")
of the Company and its Subsidiaries at September 30, 1994 ("the
Balance Sheet Date") reflected all material liabilities and
obligations of the Company and of each Subsidiary, whether accrued,
contingent or otherwise, as of the date thereof, in each case, to the
extent required by United States generally accepted accounting
principles, consistently applied ("GAAP").
(b) Since the Balance Sheet Date there has
been no material adverse change or any event or development which
could reasonably be expected to result in a material adverse change
in the business, properties, assets, operations or condition
(financial or otherwise) of the Company and its Subsidiaries, taken
as a whole, other than such changes, events or developments resulting
from general economic conditions or generally affecting the
industries in which the Company and its Subsidiaries are involved.
(c) Since the Balance Sheet Date there has
been no declaration, setting aside or payment of any dividend or
other distribution with respect to any shares of capital stock of the
Company.
(d) Since the Balance Sheet Date there has
been no issuance or sale by the Company of any shares of capital
stock of the Company of any class, or any options, warrants or other
rights to acquire any such shares, or any securities convertible into
or exchangeable for such shares or any commitments made with respect
to the foregoing, other than stock option exercises, grants of stock
options and grants of restricted stock awards pursuant to Company
plans.
2.13 Documents Delivered.
No document, certification, schedule, list or
other written information required to be delivered to the Purchaser
by or on behalf of the Company pursuant to this Agreement contains or
will contain any untrue statement of a material fact or omits or will
omit to state a material fact which will make the statements herein
or therein, in light of the circumstances under which they were made,
misleading
2.14 Proceedings and Litigation. There is no
pending, or to the knowledge of the Company threatened, suit, action
or administrative, arbitration or other proceeding, or governmental
inquiry or investigation, seeking to restrain, prevent or change the
transactions contemplated hereby or otherwise questioning the
validity or legality of such transactions or which may otherwise have
a materially adverse effect upon the business, properties, assets,
operations or condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole
2.15 Insurance.
All material insurance policies carried by the
Company and its Subsidiaries are in full force and effect and all
premiums due thereon have been paid and the Company has complied in
all material respects with the provisions of all such policies.
2.16 Intellectual Property Rights.
The Company has received no notice that the
Company is infringing any intellectual property rights of any other
Person, no claim is pending or, to the knowledge of the Company, has
been made to such effect that has not been resolved and, to the
knowledge of the Company, the Company is not infringing any
intellectual property rights of any other Person.
2.17 Prior Registration Rights.
The Company is under no contractual obligation
to register under the 1933 Act any of its presently outstanding
securities or any of its securities that may subsequently be issued.
2.18 Environmental Matters.
The Company is involved in various
environmental, contractual, warranty, and public liability cases and
claims, which are considered routine to the Company's business. In
the opinion of the Company's management the potential financial
impact of these matters is not material to the business, properties,
assets, prospects, operations or condition (financial or otherwise)
of the Company and its Subsidiaries.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER
The Purchaser understands that neither the
Shares nor the Warrant or the Warrant Shares will be registered under
the 1933 Act, on the grounds that the sales provided for in this
Agreement are exempt pursuant to Section 4(2) of the 1933 Act and/or
Regulation D promulgated under Section 4(2) of the 1933 Act, and that
the reliance of the Company on such exemptions is predicated in part
on the Purchaser's representations, warranties, covenants and
acknowledgements set forth in this Article 3.
3.1 Beneficial Ownership. The Purchaser
represents and warrants to the Company that, as of the date hereof
and prior to the purchase of the Shares and Warrant as contemplated
hereunder, (i) it is not the "beneficial owner" of any securities of
the Company, as such term is defined in Rule 13d-3 promulgated under
the Exchange Act, and (ii) it is not a member of a group which has
acquired beneficial ownership of securities of the Company for
purposes of Sections 13(d) and 13(g) of the Exchange Act.
3.2 Principal Place of Business. The
Purchaser represents and warrants to the Company that the address of
its principal place of business is 5 Skyline Drive, Hawthorne, New
York 10532.
3.3 Purchase Without View to Distribute. The
Purchaser represents and warrants to the Company that the Shares, the
Warrant and, when issued, the Warrant Shares to be purchased by it
are being acquired by the Purchaser for its own account, not as a
nominee or agent, and not with a view to resale or distribution
within the meaning of the 1933 Act and the rules and regulations
thereunder, and such Purchaser will not distribute the Shares or
Warrant in violation of the 1933 Act.
3.4 Restrictions on Transfer. The Purchaser
(i) acknowledges that the Warrant is not transferrable except to an
Affiliate of the Purchaser and that the Shares and the Warrant Shares
have not been registered under the 1933 Act and must be held
indefinitely by the Purchaser unless they are subsequently registered
under the 1933 Act or an exemption from registration is available,
(ii) is aware that any routine sales under Rule 144 of the Securities
and Exchange Commission under the 1933 Act of Shares may be made only
in limited amounts and in accordance with the terms and conditions of
that Rule and that in such cases where the Rule is not applicable,
compliance with some other registration exemption will be required,
(iii) is aware that Rule 144 is not presently available for use by
the Purchaser for resale of any of the Shares or the Warrant Shares
and (iv) is aware that, except as provided in the Standstill
Agreement, the Company is not obligated to register under the 1933
Act any sale, transfer or other disposition of the Shares or the
Warrant Shares.
3.5 Access to Information. The Purchaser
confirms that the Company has made available to it the opportunity to
ask questions of and receive answers from the Company's officers and
directors concerning the terms and conditions of the offering and the
business and financial condition of the Company, and to acquire, and
the Purchaser has received to its satisfaction, such additional
information, in addition to that set forth herein, about the business
and financial condition of the Company and the terms and conditions
of the offering as it has requested; provided, however, that the
Purchaser's confirmation set forth in this Section 3.5 shall in no
way prejudice or otherwise affect the Purchaser's right to rely upon
and enforce the Company's covenants, agreements, representations and
warranties contained in this Agreement.
3.6 Additional Representations of the
Purchaser. The Purchaser represents that (i) it is an "accredited
investor" as such term is defined in Rule 501 promulgated under the
1933 Act, (ii) it has sufficient funds available to purchase the
Shares and the Warrant and will, at the time of any exercise of the
Warrant, have sufficient funds to purchase the Warrant Shares,
(iii) its knowledge and experience in financial and business matters
are such that it is capable of evaluating the merits and risks of its
purchase of the Shares, the Warrant and, when issued, the Warrant
Shares as contemplated by this Agreement; provided, however, that the
Purchaser's representation set forth in this clause (iii) shall in no
way prejudice or otherwise affect the Purchaser's right to rely upon
and enforce the Company's covenants, agreements, representations and
warranties contained in this Agreement, and (iv) the purchase of the
Shares, the Warrant and, when issued, the Warrant Shares by it has
been duly and properly authorized and this Agreement has been duly
executed by it or on its behalf.
3.7 Legends. The Purchaser understands that
the certificates evidencing the Shares and, when issued, the Warrant
Shares shall bear the legend set forth in Section 8.2 herein.
3.8 Proceedings and Litigation. There is no
pending, or to the knowledge of the Purchaser threatened, suit,
action or administrative, arbitration or other proceeding, or
governmental inquiry or investigation, seeking to restrain, prevent
or change the transactions contemplated hereby or otherwise
questioning the validity or legality of such transactions.
ARTICLE 4. CONDITIONS PRECEDENT TO THE PURCHASER'S
OBLIGATIONS
The Purchaser's obligation to purchase and make
payment for the Shares and Warrant on the Closing Date is subject, at
its option, to the satisfaction of each of the following conditions:
4.1 Representations and Warranties. On the
Closing Date, the representations and warranties contained in Article
2 hereof shall be true and correct in all material respects with the
same effect as though made on and as of the Closing Date, and the
Purchaser shall have received a certificate signed by an executive
officer of the Company to the foregoing effect.
4.2 Performance. All the covenants,
agreements and conditions contained in this Agreement to be performed
or complied with by the Company on or prior to the Closing Date shall
have been performed or complied with in all materials respects, and
the Purchaser shall have received a certificate signed by an
executive officer of the Company to the foregoing effect.
4.3 Opinion of Counsel. The Purchaser shall
have received a legal opinion from counsel to the Company,
substantially in the form set forth in Exhibit C.
4.4 HSR Act. The waiting period under the HSR
Act shall have expired or been terminated.
4.5 Standstill Agreement. The Standstill
Agreement shall have been executed and delivered by all the parties
thereto and shall be in full force and effect.
4.6 No Proceeding or Litigation. No suit,
action, or other proceeding by any person (other than by the
Purchaser) seeking to restrain, prevent or change the transactions
contemplated hereby or otherwise questioning the validity or legality
of such transactions shall have been instituted and be pending.
4.7 Disclosure Letter. The Disclosure Letter
shall have been delivered to the Purchaser, setting forth certain
information specified in Article 2.
4.8 Approval by Principal Trading Market. The
issuance, sale and purchase of the Shares and Warrant Shares, as
contemplated by this Agreement without approval by the Company's
shareholders, shall have received all necessary approvals from the
principal trading exchange or national automated stock quotation
system on which the Company's Common Stock is traded or quoted.
4.9 Exon-Florio Notice. If the Purchaser has
filed an Exon-Florio notice, as provided in Section 5021 of the
Omnibus Trade and Competitiveness Act of 1988, as amended, and
regulations promulgated thereunder, the Committee on Foreign
Investment in the United States shall have determined that no action
is required.
ARTICLE 5. CONDITIONS PRECEDENT TO THE COMPANY'S
OBLIGATIONS
The Company's obligation to sell the Shares and
the Warrant on the Closing Date is subject, at the Company's option,
to the satisfaction of each of the following conditions:
5.1 Representations and Warranties. On the
Closing Date, the representations and warranties contained in Article
3 hereof shall be true and correct in all material respects with the
same effect as though made on and as of the Closing Date and the
Company shall have received a certificate signed by an executive
officer of the Purchaser to the foregoing effect.
5.2 Performance. All the covenants,
agreements and conditions contained in this Agreement to be performed
or complied with by the Purchaser on or prior to the Closing Date
shall have been performed or complied with in all material respects,
and the Company shall have received a certificate signed by an
executive officer of the Purchaser to the foregoing effect.
5.3 No Proceeding or Litigation. No suit,
action, or other proceeding by any person (other than by the Company)
seeking to restrain, prevent or change the transactions contemplated
hereby or otherwise questioning the validity or legality of such
transactions shall have been instituted and be pending.
5.4 HSR Act. The waiting period under the HSR
Act shall have expired or been terminated.
5.5 Standstill Agreement. The Standstill
Agreement shall have been executed and delivered by all the parties
thereto and shall be in full force and effect.
5.6 Opinion of Counsel. The Company shall
have received a legal opinion from Counsel to the Purchaser,
substantially in the form set forth in Exhibit D.
5.7 Approval by Principal Trading Market. The
issuance, sale and purchase of the Shares and the Warrant Shares, as
contemplated by this Agreement without approval by the Company's
shareholders, shall have received all necessary approvals from the
principal trading exchange or national automated stock quotation
system on which the Company's Common Stock is traded or quoted.
5.8 Exon-Florio Notice. If the Purchaser has
filed an Exon-Florio notice, as provided in Section 5021 of the
Omnibus Trade and Competitiveness Act of 1988, as amended, and
regulations promulgated thereunder, the Committee on Foreign
Investment in the United States shall have determined that no action
is required.
ARTICLE 6. HSR ACT
6.1 Filings. As promptly as practicable after
the date of this Agreement the Company and the Purchaser will, and
the Purchaser will cause its "ultimate parent entity" (if any) to,
(a) make all filings required to be made by them and provide such
information as may be requested under the HSR Act in order to
consummate the transactions contemplated hereby, (b) make all other
required regulatory filings which may be applicable to the
transactions contemplated hereby and (c) cooperate with one another
in connection with all such filings.
ARTICLE 7. COVENANTS OF THE COMPANY AND THE PURCHASER
7.1 Covenants of the Company. The Company
covenants that (i) at all such times as Rule 144 is available for use
by the holders of the Shares or Warrant Shares, the Company will
furnish each such holder upon request with all information within the
possession of the Company required for the preparation and filing of
Form 144 and (ii) subject to the provisions of the Confidentiality
Agreement, dated December 13, 1994, between the parties, during the
time between the signing of this Agreement and the Closing the
Company will give the Purchaser reasonable access during normal
business hours, upon reasonable prior notice, to the offices,
properties, books and records of the Company and will furnish to the
Purchaser such financial and operating data and other information
relating to the Company as the Purchaser may reasonably request.
7.2 No Purchases Before Closing. Without the
Company's written consent neither the Purchaser nor its Affiliates
shall, between the date of execution of this Agreement and Closing,
acquire in any way or hold record or beneficial ownership of any
Common Shares or any other Company securities entitled to vote for
the election of directors, or any security convertible into or
exchangeable or exercisable for the purchase of Common Shares or
other Company securities entitled to vote for the election of
directors.
ARTICLE 8. COMPLIANCE WITH 1933 ACT; RESTRICTIONS ON
TRANSFERABILITY OF SHARES AND WARRANT SHARES
8.1 Compliance with 1933 Act. The Shares, the
Warrant and the Warrant Shares shall not be transferable, except upon
the conditions specified in this Article 8 and in the Standstill
Agreement, which conditions are intended among other things to insure
compliance with the provisions of the 1933 Act and applicable state
securities laws in respect of any such transfer.
8.2 Restrictive Legend. Each certificate
representing the Shares or Warrant Shares shall (unless otherwise
permitted by the provisions of Section 8.4 below) be stamped or
otherwise imprinted with the following legend:
"THE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY APPLICABLE STATE
SECURITIES LAW AND ARE SUBJECT TO THE
RESTRICTIONS ON DISPOSITION SET FORTH
IN AND TO THE OTHER PROVISIONS OF A
COMMON SHARE AND WARRANTY PURCHASE
AGREEMENT, DATED FEBRUARY 27, 1995,
BETWEEN VWR CORPORATION AND EM
INDUSTRIES, INCORPORATED, AND A
STANDSTILL AGREEMENT, DATED FEBRUARY
27, 1995, BETWEEN VWR CORPORATION AND
EM INDUSTRIES, INCORPORATED. COPIES
OF SUCH AGREEMENTS ARE ON FILE AT THE
RESPECTIVE OFFICES OF VWR CORPORATION
AND EM INDUSTRIES, INCORPORATED."
8.3 Restrictions on Transferability. The
Company shall not be required to register the transfer of the Shares
or the Warrant Shares on the books of the Company unless the Company
shall have been provided with an opinion of counsel reasonably
satisfactory to it prior to such transfer to the effect that
registration under the 1933 Act or any applicable state securities
law is not required in connection with the transaction resulting in
such transfer; provided, however, that no such opinion of counsel
shall be necessary in order to effectuate a transfer of Shares or
Warrant Shares in accordance with the provisions of Rule 144(k)
promulgated under the 1933 Act. Each certificate for Shares or
Warrant Shares issued upon any transfer as above provided shall bear
the restrictive legend set forth in Section 8.2 above, except that
such restrictive legend shall not be required if the opinion of
counsel reasonably satisfactory to the Company referred to above is
to the further effect that such legend is not required in order to
establish compliance with the provisions of the 1933 Act and any
applicable state securities law, or if the transfer is made in
accordance with the provisions of Rule 144(k) under the 1933 Act.
8.4 Termination of Restrictions on
Transferability. The conditions precedent imposed by this
Article 8 upon the transferability of the Shares and Warrant Shares
shall cease and terminate as to any of the Shares or Warrant Shares
when (i) such securities shall have been registered under the 1933
Act and sold or otherwise disposed of in accordance with the intended
method of disposition by the seller or sellers thereof set forth in
the registration statement covering such securities, (ii) at such
time as an opinion of counsel satisfactory to the Company shall have
been rendered as required pursuant to the second sentence of
Section 8.3 to the effect that the restrictive legend on such
securities is no longer required, or (iii) when such securities are
transferable in accordance with the provisions of Rule 144(k)
promulgated under the 1933 Act. Whenever the conditions imposed by
this Article 8 shall terminate as hereinabove provided with respect
to any of the Shares or Warrant Shares, the holder of any such
securities bearing the legend set forth in this Article 8 as to which
such conditions shall have terminated shall be entitled to receive
from the Company, without expense (except for the payment of any
applicable transfer tax) and as expeditiously as possible, new stock
certificates not bearing such legend.
ARTICLE 9. SURVIVAL OF COVENANTS, AGREEMENTS,
REPRESENTATIONS AND WARRANTIES
All covenants, agreements, representations and
warranties made herein shall survive until July 1, 1997, provided,
however, representations and warranties made herein shall only be
deemed to have been made as of the date hereof and as of the Closing
Date.
ARTICLE 10. INDEMNIFICATION
(a) Effective at the Closing, the Company
agrees to indemnify, hold harmless and defend the Purchaser and its
Affiliates, against and in respect of any and all claims, demands,
liabilities, losses, costs and expenses (including reasonable
attorneys' fees and litigation expenses) arising out of or based upon
(i) the breach of any representation or warranty made by the Company
in this Agreement, the Standstill Agreement, or in any certificate or
other document required to be delivered pursuant hereto, or (ii) the
breach by the Company of any agreement or covenant contained in this
Agreement or the Standstill Agreement.
(b) Effective at the Closing, the Purchaser
agrees to indemnify, hold harmless and defend the Company and its
Affiliates against and in respect of any and all claims, demands,
liabilities, losses, costs and expenses (including reasonable
attorneys' fees and litigation expenses) arising out of or based upon
(i) the breach of any representation or warranty made by the
Purchaser in this Agreement, the Standstill Agreement, or in any
certificate or other document required to be delivered pursuant
hereto, or (ii) the breach by the Purchaser of any agreement or
covenant contained in this Agreement or the Standstill Agreement.
(c) No party shall be liable for
indemnification under this Article 10 unless the total of all
liabilities, costs, losses and expenses for which the indemnified
party has a right to indemnification under this Article 10
(collectively, the "Indemnifiable Damages") exceeds $500,000, in
which event the indemnified party shall be entitled to Indemnifiable
Damages solely in excess of such amount.
(d) No claims for indemnification under this
Article 10 may be made later than July 1, 1997, with respect to the
inaccuracy or breach of a representation or warranty, or two (2)
years after such breach first occurred with respect to the breach of
a covenant or agreement. No provision of this Agreement shall limit
the ability of either party to obtain specific performance of the
other party's obligations hereunder, including, without limitation,
the obligations of the Company to register the registrable
securities.
(e) The party seeking indemnification under
this Article 10 (the "Indemnified Party") agrees to give prompt
notice to the party against whom indemnity is sought (the
"Indemnifying Party") of the assertion of any claim, or the
commencement of any suit, action or proceeding, in respect of which
indemnity may be sought under such Article. The Indemnifying Party
may participate in and, at its election, control the defense of any
such suit, action or proceeding at its own expense; provided that
counsel selected to conduct such defense is reasonably satisfactory
to the Indemnified Party. The Indemnifying Party shall not be liable
under this Article 10 in the event prompt notice of the assertion of
a claim or the commencement of a suit, action or proceeding in
respect of which indemnity is sought is not given as described
herein, but only to the extent the defense of such claim, suit,
action or proceeding is prejudiced thereby, or for any settlement
effected without its consent of any claim, litigation or proceeding
in respect of which indemnity may be sought hereunder. The
Indemnifying Party may settle or compromise any claim without the
prior written consent of the Indemnified Party; provided that the
Indemnifying Party may not agree to any such settlement pursuant to
which any remedy or relief, other than monetary damages for which the
Indemnifying Party shall be responsible hereunder, shall be applied
to or against the Indemnified Party, without the prior written
consent of the Indemnified Party.
ARTICLE 11. TERMINATION
11.1 Termination. This Agreement may be
terminated at any time:
(a) by mutual consent of the Company and the
Purchaser in a written instrument;
(b) by either the Purchaser or the Company if
there has been a material breach on the part of the other of any
representation, warranty, covenant or agreement set forth in this
Agreement, which breach has not been cured within thirty (30)
business days following receipt by the breaching party of notice of
such breach;
(c) by either the Company or the Purchaser if
the Closing shall not have occurred on or before August 1, 1995
unless the failure to close by such time is due to the breach of this
Agreement by the party seeking to terminate.
11.2 Effect of Termination. In the event of
termination of this Agreement by either the Company or the Purchaser
as provided in Section 11.1, this Agreement shall forthwith become
void. No termination of this Agreement shall relieve any party from
liability resulting from a breach by such party of any of its
representations, warranties, covenants or agreements set forth
herein.
ARTICLE 12. MISCELLANEOUS
12.1 Owner of Shares. The Company may deem and
treat the person in whose name the Shares, Warrant or Warrant Shares
are registered as the absolute owner thereof for all purposes
whatsoever, and the Company shall not be affected by any notice to
the contrary.
12.2 Broker or Finder. Each party to this
Agreement represents and warrants that no broker or finder has acted
for such party in connection with this Agreement or the transactions
contemplated by this Agreement and that no broker or finder is
entitled to any broker's or finder's fee or other commission in
respect thereof based in any way on agreements, arrangements or
understandings made by such party. The Company shall indemnify the
Purchaser against, and hold it harmless from, any liability, cost, or
expense (including reasonable attorneys' fees and expenses) resulting
from any agreement, arrangement, or understanding made by the
Company, and the Purchaser shall indemnify the Company against, and
hold the Company harmless from, any liability, cost, or expense
(including reasonable attorneys fees and expenses) resulting from any
agreement, arrangement, or understanding made by the Purchaser with
any third party, for brokerage or finder's fees or other commissions
in connection with this Agreement or any of the transactions
contemplated hereby.
12.3 Specific Enforcement. The parties hereto
acknowledge and agree that each would be irreparably damaged if any
of the provisions of this Agreement are not performed by the other in
accordance with their specific terms or are otherwise breached. It is
accordingly agreed that each party shall be entitled to seek an
injunction or injunctions to prevent breaches of this Agreement by
the other and to enforce this Agreement and the terms and provisions
thereof specifically against the other, in addition to any other
remedy to which such aggrieved party may be entitled at law or in
equity. Any action or proceeding seeking to enforce any provision
of, or based on any right arising out of, this Agreement may be
brought against any of the parties in the courts of the Commonwealth
of Pennsylvania, County of Chester, in the United States District
Court for the Eastern District of Pennsylvania, in the courts of the
State of New York, County of New York, or in the United States
District Court for the Southern District of New York, and each of the
parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Process in any action or
proceeding referred to in the preceding sentence may be served on any
party anywhere in the world.
12.4 Severability. If any term or provision of
this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its
regulatory policy, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
12.5 Expenses. Except as otherwise provided
herein, each party hereto shall pay its own expenses in connection
with this Agreement.
12.6 Assignment; Successors. This Agreement
shall be binding upon and shall inure to the benefit of and be
enforceable by the successors and permitted assigns of the parties
hereto. The Company may not assign its rights and delegate its
duties and obligations under this Agreement without the prior written
consent of the Purchaser, and the Purchaser may not assign its rights
or delegate its duties and obligations under this Agreement without
the prior written consent of the Company and, in the absence of such
consent, any such purported assignment or delegation shall be void;
provided, however, that the Purchaser may assign its rights and
delegate its duties and obligations under this Agreement without such
consent to a directly or indirectly wholly owned subsidiary of the
Purchaser, or to any corporation, partnership or other entity wholly-
owned by the same person which controls the Purchaser, which
subsidiary, corporation, partnership or other entity (referred to
herein as the "Assignee") may, following duly authorized execution
and delivery of an agreement assuming the obligations of the
Purchaser hereunder reasonably satisfactory to the Company, accept
title to the Shares and/or Warrant Shares. In the event that the
Purchaser assigns its rights and delegates all of its obligations
under this Agreement in accordance with this Section 12.6, all
references to the Purchaser herein shall refer to the Assignee as
well as to the Purchaser and the Purchaser shall be jointly and
severally liable with the Assignee for the performance of its
obligations hereunder.
12.7 Amendments. This Agreement may not be
modified, amended, altered or supplemented except by a written
agreement signed by the Company and the Purchaser which shall be
authorized by all necessary corporate action of each party. Any
party may waive any condition to the obligations of any other party
hereunder.
12.8 Notices. Every notice or other
communication required or contemplated by this Agreement to be given
by a party shall be delivered either by (a) personal delivery, (b)
courier mail, or (c) facsimile mail addressed to the party for whom
intended at the following address:
To the Company: VWR Corporation
1310 Goshen Parkway
West Chester, PA 19380
Attention: Jerrold B. Harris
Telecopy No.: (610)436-1760
With a copy to: Drinker Biddle & Reath
1000 Westlakes Drive, Suite 300
Berwyn, PA 19312
Attention: Thomas E. Wood, Esq.
Telecopy No.: (610)993-8585
To the Purchaser: EM Industries, Incorporated
5 Skyline Drive
Hawthorne, New York 10532
Attention: President & Chief
Executive Officer
Telecopy No.: (914) 592-8775
With a copy to: Rogers & Wells
200 Park Avenue
New York, New York 10166
Attention: Klaus H. Jander, Esq.
Telecopy No.: (212) 878-3025
or at such other address as the intended recipient previously shall
have designated by written notice to the other parties. Notice by
courier mail shall be effective on the date it is officially recorded
as delivered to the intended recipient by return receipt or
equivalent. All notices and other communications required or
contemplated by this Agreement delivered in person or sent by
facsimile mail shall be deemed to have been delivered to and received
by the addressee and shall be effective on the date of personal
delivery or on the date sent, respectively. Notice not given in
writing shall be effective only if acknowledged in writing by a duly
authorized representative of the party to whom it was given.
12.9 Attorneys' Fees. If any action or
proceeding shall be commenced to enforce this Agreement or any right
arising in connection with this Agreement, the prevailing party in
such action or proceeding shall be entitled to recover from the other
party the reasonable attorneys' fees, costs and expenses incurred by
such prevailing party in connection with such action or proceeding.
12.10 Integration. This Agreement, together
with the Warrant and Standstill Agreement, contains the entire
understanding of the parties with respect to its subject matter.
There are no restrictions, agreements, promises, warranties,
covenants or undertakings other than those expressly set forth herein
or therein with respect to any matter.
12.11 Waivers. No failure or delay on the part
of either party in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or
privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
12.12 Governing Law. This Agreement shall be
exclusively governed by, construed in accordance with, and
interpreted according to the substantive law of the Commonwealth of
Pennsylvania without giving effect to the principles of conflict of
laws.
12.13 Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed
to be an original, but all of which together shall constitute one and
the same instrument.
12.14 Cooperation. The parties hereto shall
each perform such acts, execute and deliver such instruments and
documents, and do all such other things as may be reasonably
necessary to accomplish the transactions contemplated in this
Agreement.
12.15 Section Headings and Captions. Section
headings and captions used in this Agreement are provided for
convenience only and shall not affect the Agreement's meaning or
interpretation.
IN WITNESS WHEREOF, each of the parties hereto
has duly executed this Agreement on the date first set forth above.
VWR CORPORATION
By: /s/ Jerrold B. Harris
Its: President
EM INDUSTRIES, INCORPORATED
By: /s/ Walter W. Zywottek
Its: President
