FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: JULY 3, 1997
(DATE OF EARLIEST EVENT REPORTED)
LANXIDE CORPORATION
____________________
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 0-16293 51-0270253
________ _______ __________
(STATE OR OTHER JURISDICTION (COMMISSION FILE NUMBER) (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
___________________________________________________
1300 MARROWS ROAD
P.O. BOX 6077
NEWARK, DELAWARE 19714
(302) 456-6200
(ADDRESS INCLUDING ZIP CODE, AND TELEPHONE NUMBER INCLUDING AREA CODE OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES.)
ITEM 1. CHANGE IN CONTROL OF REGISTRANT.
_______________________________
Commodore Environmental Services, Inc., a Delaware corporation ("COES"),
has obtained effective control of Lanxide Corporation, a Delaware corporation
(the "Company"), pursuant to the Voting Agreement, dated July 3, 1997, among the
Company and certain of its stockholders (the "Voting Agreement") which was
executed in connection with the transactions contemplated by the Securities
Purchase Agreement, dated July 3, 1997, between the Company and COES (the
"Securities Purchase Agreement") described below. Pursuant to the Voting
Agreement, stockholders of the Company who own 664,329 shares of common stock,
par value $.01 per share, of the Company (the "Common Stock"), or 50.1% of the
outstanding Common Stock, granted proxies to the members of the Board of
Directors of COES, specifically: Messrs. Bentley J. Blum, Paul E. Hannesson,
David Mitchell, Herbert Cohen and Kenneth Adelman (collectively, the
"Proxyholders") to vote all shares of Common Stock held by each such stockholder
until December 31, 1998.
Pursuant to the Securities Purchase Agreement, COES agreed to purchase up
to $25 million of the Company's capital stock. Under the terms of the
Securities Purchase Agreement, COES can acquire up to $10.5 million of the
Company's Series G Preferred Stock (the "Series G Stock") as follows: (i) on
July 3, 1997, COES purchased 10,000 shares of Series G Stock for a purchase
price of $1.0 million in cash, (ii) on July 28, 1997, COES will purchase
10,000 shares of Series G Stock for a purchase price of $1.0 million in cash,
and (iii) if prior to August 27, 1997, COES receives $10.5 million in financing,
COES will purchase 85,000 shares of Series G Stock for an aggregate purchase
price of $8.5 million comprised of (x) $4.0 million in cash and (y) the
cancellation of the Company's outstanding indebtedness to COES and its
subsidiary, Commodore Applied Technology, Inc., in the amount of $4.5 million.
In addition, the Company issued a Warrant (the "Warrant") to COES for the
purchase of 250,000 shares of the Company's Series F Preferred Stock (the
"Series F Stock") at an exercise price of $100 per share. The Warrant may be
exercised, in part, by the exchange of the shares of Series G Stock acquired
pursuant to the Securities Purchase Agreement for a like number of shares of
Series F Stock. If COES elects to purchase all shares of Series F Stock
issuable upon exercise of the Warrant, the Company will receive an aggregate
consideration of $25 million.
The Series G Stock is not convertible and is not entitled to vote or to
receive dividends. The Series G Stock may be redeemed by the Company after
December 31, 1998 to the extent such shares have not been used to exercise the
Warrant.
The terms of the Series F Stock include, among other things, (a) the right
to convert into shares of Common Stock at a rate, subject to adjustment, of 13.5
shares of Common Stock for each share of Series F Stock; (b) a mandatory
conversion by the holders upon certain events, including the sale by the Company
of at least $10 million of Company securities in a public offering or a private
placement prior to the time that (x) COES exercises at least $10 million of the
Warrant or (y) COES purchases all 105,000 shares of Series G Stock; and (c) the
right to elect four of the seven members of the Board of Directors of the
Company.
The Company is entitled to terminate the Securities Purchase Agreement if
it receives alternative superior financing prior to the purchase by COES of all
105,000 shares of Series G Stock. Upon such termination, the Company must pay
COES the greater of $300,000 or COES' expenses incurred in connection with the
transaction contemplated by the Securities Purchase Agreement. If the Agreement
is terminated prior to August 27, 1997, as a result of a superior offer,
Commodore shall be entitled to retain and exercise the Warrant in accordance
with its terms. In addition, if after August 27, 1997, (x) COES has not
purchased all 105,000 shares of Series G Stock, for any reason other than the
Company's prior receipt of a superior offer or the Company's breach of certain
covenants and agreements contained in the Securities Purchase Agreement, (y) a
Liquidity Event (as defined in the Certificate of Designations relating to the
Series F Stock) has occurred or (z) the Company has received alternative
superior financing, then the Company may redeem the unexercised portion of the
Warrant for $.001 per warrant share.
In accordance with the Securities Purchase Agreement, on July 7, 1997, the
Board of Directors of the Company expanded the number of Board members to seven
and elected Michael Fullwood, the Senior Vice President, Chief Financial and
Administrative Officer, Secretary and General Counsel of COES, and William
Toller, the retired Chairman and Chief Executive Officer of Witco Corporation,
and a Director of Commodore Separation Technologies, Inc., to fill the newly
created directorships. In addition, the Board of Directors of the Company
appointed Mr. Toller to the position of Vice Chairman of the Company. The Board
of Directors of the Company also appointed Mr. Fullwood to the position of
Senior Vice President, Chief Financial and Administrative Officer and General
Counsel of the Company.
The above description of the transactions contemplated by the Securities
Purchase Agreement is qualified in its entirety by reference to the Securities
Purchase Agreement and the exhibits attached thereto which are filed with this
Current Report on Form 8-K as Exhibit 10.70.
Security Ownership of Certain Beneficial Owners and Management
______________________________________________________________
Assuming (i) the investment by COES of the full $25 million pursuant to
the Securities Purchase Agreement, (ii) the subsequent conversion of all shares
of Series F Stock into Common Stock, (iii) no exercise of any currently
outstanding options or warrants to purchase Common Stock and (iv) no conversion
of any outstanding shares of the Company's Series A Preferred Stock, as of July
3, 1997, COES beneficially owns 85.9% of the outstanding Common Stock, which
includes (i) a Warrant to purchase 250,000 shares of Series F Stock, which are
convertible into 3,375,000 shares of Common Stock, and (ii) 664,329 shares of
Common Stock which the Board of Directors of COES is entitled to vote pursuant
to the Voting Agreement. Set forth below is a table showing the beneficial
ownership as of July 3, 1997 of the Common Stock of the Company by each of its
officers, directors and each entity known by the Company to beneficially own
five percent or more of any class of the Company's voting securities.
Number Percent
of of
Title of Class Name and Address of Beneficial Owner(1) Shares Class
_____________ _______________________________________ _____ _____
Common Stock Commodore Environmental Services, Inc. (2) 4,039,329 85.9%
Alcan (3), (4) 188,432 12.4
Marc S. Newkirk (5), (6), (7) 169,529 11.6
Michael J. Hollins (5), (7), (8) 25,057 1.9
Mark G. Mortenson (7) 5,099 *
Christopher R. Kennedy (7) 4,666 *
Robert J. Ferris (5), (7) 9,546 *
Bentley J. Blum (5), (7), (9) 656,739 46.7
Paul E. Hannesson (5), (7), (10) 35,363 2.7
J. Frederick Van Vranken, Jr. (5), (7), (11) 21,565 1.6
Stephen A. Weiss (5), (7), (12) 1,639 *
All directors and executive officers 929,203 58.5
as a group (nine persons)
____________________________________________________
* Less than 1% of outstanding shares.
(1) Unless otherwise indicated, (i) the address of each of the beneficial
owners is c/o Lanxide, 1300 Marrows Road, P.O. Box 6077, Newark, Delaware
19714, (ii) all shares are owned directly, and (iii) each person has sole
investment and voting power.
(2) Includes (i) 3,375,000 shares of Common Stock convertible from 250,000
shares of Series F Stock which may be acquired upon exercise of the
Warrant and (ii) 664,329 shares of Common Stock which the Board of
Directors of COES is entitled to vote pursuant to the Voting Agreement.
COES' address is 150 East 58th Street, Suite 3400, New York,
New York 10155.
(3) Consists solely of shares of the Company's Series A Preferred Stock,
convertible at any time into the Company's Common Stock.
(4) Includes 27,007; 96,865; and 64,560 shares owned by Alcan Aluminium
Limited, Alcan Aluminum Corporation and Alcan Automotive Castings,
respectively. Alcan's address is 1188 Sherbrooke Street West,
Montreal, Quebec, Canada H3A 3G2.
(5) Includes 184,944 shares of the Company's Series A Preferred Stock,
convertible at any time into 68,787 shares of the Company's Common Stock.
(6) Includes shares owned by Mr. Newkirk's spouse, Karen H. Newkirk (2,487
shares); and minor children trusts dated 3/3/88 for the benefit of
Corey E. Newkirk (1,827 shares) and Ross S. Newkirk (1,827 shares) and
trust under agreement of Marc S. Newkirk dated 3/3/88 (66,773 shares) for
which Mr. Newkirk has voting power. Pursuant to the Voting Agreement,
Mr. Newkirk is not entitled to vote the 33,000 shares of Common Stock
owned by him.
(7) Includes options to purchase 133,843 shares of the Company's Common Stock
which are exercisable within 60 days, including: 96,346 shares for
Mr. Newkirk, 12,778 shares for Mr. Hollins, 5,099 shares for
Mr. Mortenson, 4,666 shares for Mr. Kennedy, 6,845 shares for Mr. Ferris,
2,004 shares for Mr. Blum, 2,004 shares for Mr. Hannesson, 2,601 shares
for Mr. Van Vranken, and 1,500 shares for Mr. Weiss.
(8) Excludes shares beneficially owned by Kanematsu which are subject to the
Voting Trust Agreement, dated as of May 28, 1992, between Kanematsu and
Mr. Hollins, as voting trustee.
(9) Includes 41,088 shares owned by Mr. Blum's spouse, Laura Utley, as to
which Mr. Blum disclaims beneficial ownership. Also includes warrants to
purchase 58,763 shares of the Company's Common Stock exercisable until
January 14, 1998. Pursuant to COES' Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, Mr. Blum beneficially owns
30,224,050 shares of common stock of COES, or 52.2%, which includes
2,000,000 shares owned by Mr. Blum's wife, Laura Utley. Mr. Blum's
address is 150 E. 58th Street, Suite 3400, New York, New York 10155.
Pursuant to the Voting Agreement, Mr. Blum and Ms. Utley are not entitled
to vote the 574,586 shares of Common Stock owned by them.
(10) Includes 16,680 shares owned by Mr. Hannesson's spouse, Suzanne G.
Hannesson, as to which Mr. Hannesson disclaims beneficial ownership.
Mr. Hannesson's address is 150 East 58th Street, New York, NY 10155.
Pursuant to the Voting Agreement, Mr. and Mrs. Hannesson are not entitled
to vote the 27,780 shares of Common Stock owned by them.
(11) Includes shares owned by Mr. Van Vranken's Individual Retirement Account,
of which Mr. Van Vranken is the beneficial owner. Mr. Van Vranken's
address is 230 Park Avenue, 13th Floor, New York, NY 10169.
(12) Mr. Weiss' address is 153 East 53rd Street, 35th Floor, New York,
NY 10022.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
_________________________________
(a) Financial statements of business acquired:
__________________________________________
Not applicable.
(b) Pro Forma financial information:
________________________________
Not applicable.
(c) Exhibits:
________
3.5.1 Certificate of Designations relating to the Series F Preferred
Stock of the Company. Incorporated by reference to Exhibit
A-1 to the Company's Securities Purchase Agreement filed as
Exhibit 10.70 to this Report.
3.5.2 Certificate of Designations relating to the Series G Preferred
Stock of the Company. Incorporated by reference to Exhibit A-2 to
the Company's Securities Purchase Agreement filed as Exhibit 10.70
to this Report.
4.15 Warrant, dated July 3, 1997, issued by the Company to Commodore
Environmental Services, Inc. Incorporated by reference to Exhibit
B to the Company's Securities Purchase Agreement filed as Exhibit
10.70 to this Report.
9.2 Voting Agreement, dated July 3, 1997, among the Proxyholder (as
defined therein), the Company and stockholders set forth in
Exhibit A thereto. Incorporated by reference to Exhibit C to the
Company's Securities Purchase Agreement filed as Exhibit 10.70 to
this Report.
10.70 Securities Purchase Agreement, dated July 3, 1997, between the
Company and Commodore Environmental Services, Inc.
99.1 Press release issued by the Company on July 7, 1997.
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934,
the registrant caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
LANXIDE CORPORATION
Date: July 18, 1997 By: /s/Robert J. Ferris
______________________________
Robert J. Ferris
Vice President - Administration
Secretary and Treasurer
(Duly Authorized Officer and
Principal Accounting Officer)
EXHIBIT INDEX
_____________
Exhibit Description
Number
______ ___________
3.5.1 Certificate of Designations relating
to the Series F Preferred Stock of the
Company. Incorporated by reference to
Exhibit A-1 to the Company's
Securities Purchase Agreement filed as
Exhibit 10.70 to this Report.
3.5.2 Certificate of Designations relating
to the Series G Preferred Stock of the
Company. Incorporated by reference to
Exhibit A-2 to the Company's
Securities Purchase Agreement filed as
Exhibit 10.70 to this Report.
4.15 Warrant, dated July 3, 1997, issued by
the Company to Commodore Environmental
Services, Inc. Incorporated by
reference to Exhibit B to the Company
Securities Purchase Agreement filed as
Exhibit 10.70 to this Report.
9.2 Voting Agreement, dated July 3, 1997,
among the Proxyholder (as defined
therein), the Company and stockholders
set forth in Exhibit A thereto.
Incorporated by reference by Exhibit C
to the Securities Purchase Agreement
filed as Exhibit 10.70 to this Report.
10.70 Securities Purchase Agreement, dated
July 3, 1997 between the Company and
Commodore Environmental Services, Inc.
99.1 Press release issued by the Company on
July 7, 1997.
EXHIBIT 10.70
SECURITIES PURCHASE AGREEMENT
_____________________________
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is entered into this
3rd day of July 1997, by and between LANXIDE CORPORATION, a Delaware corporation
("Lanxide") and COMMODORE ENVIRONMENTAL SERVICES, INC., a Delaware corporation
("Commodore").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Lanxide is engaged primarily in a business consisting of the
development and commercialization of high-performance composite materials and
products; and
WHEREAS, in furtherance of its business, Lanxide requires additional funds
for working capital and other general corporate purposes, and proposes to obtain
such capital by means of the issuance and sale of shares of its Series F
Preferred Stock to Commodore and certain warrants to purchase additional shares
of Series F Preferred Stock of Lanxide, all pursuant to this Agreement; and
WHEREAS, Commodore is willing to purchase such Series F Preferred Stock of
Lanxide and such Lanxide warrants pursuant to the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereby agree as follows:
1. DEFINITIONS. In addition to the other terms defined in this
Agreement, and except as otherwise provided herein, the capitalized terms set
forth below (in their singular and plural forms as applicable) shall have the
following meanings:
"Affiliate" shall mean, with respect to any Person, any other Person
in control of, controlled by, or under common control with, the first Person.
"Business Day" shall mean any day, exclusive of Saturday and Sunday,
on which national banking institutions in the United States are open for
business.
"Certificates of Designation" shall mean the collective reference to
the Series F Certificate of Designation and the Series G Certificate of
Designation.
"Cleanup" shall mean all actions required to: (a) cleanup, remove,
treat or remediate Hazardous Materials in the indoor or outdoor environment;
(b) prevent the Release of Hazardous Materials so that they do not migrate,
endanger or threaten to endanger public health or welfare in the indoor or
outdoor environment; (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care; or (d) respond to any government requests for
information or documents in any way relating to cleanup, removal, treatment or
remediation or potential cleanup, removal, treatment or remediation of Hazardous
Materials in the indoor or outdoor environment.
"Closing" and "Closing Date" shall have the respective meanings
ascribed thereto in Section 9.1 hereof.
"Commodore Fairness Opinion" shall mean the written opinion of
Schroder Wertheim & Co. Incorporated, or such other nationally recognized
investment bank as the Special Committee of the Board of Directors of Commodore
shall select to render its opinion, to the effect that the aggregate purchase
price to be paid by Commodore to Lanxide pursuant to this Agreement in exchange
for all of the Shares and the Warrant is fair to Commodore from a financial
point of view.
"Environmental Claim" shall mean any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, Cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (a) the presence, or Release into the indoor
or outdoor environment, of any Hazardous Materials at any location, whether or
not owned or operated by Lanxide or any of its Subsidiaries, as the case may be,
or (b) circumstances forming the basis of any violation, or alleged violation,
of any Environmental Law.
"Environmental Laws" shall mean all federal, state, local and foreign
laws and regulations relating to pollution or protection of human health or the
environment, including without limitation, laws relating to Releases or
threatened Releases of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, Release,
disposal, transport or handling of Hazardous Materials and all laws and
regulations with regard to recordkeeping, notification, disclosure and reporting
requirements respecting Hazardous Materials, and all laws relating to endangered
or threatened species of fish, wildlife and plants and the management or use of
natural resources.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Existing Lanxide Warrants" shall mean the warrants to purchase shares
of Lanxide Common Stock which are outstanding immediately prior to the Closing
Date.
"GAAP" shall mean generally accepted accounting principles
consistently applied.
"Hazardous Materials" means "hazardous substance" (as defined by the
Comprehensive Environmental Response, Compensation, and Liability Act, as
amended), "hazardous waste" (as defined by the Resource Conservation and
Recovery Act, as amended), pesticides, petroleum, crude oil or any fraction
thereof, radioactive material, and any pollutant, oil, contaminant, or
hazardous, extremely hazardous, dangerous or toxic chemical, material, or waste
and any other substance within the meaning of any Environmental Law or which
could pose a hazard to the environment or the health and safety of any person.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Lanxide Capital Stock" shall mean the collective reference to the
Lanxide Common Stock, the Lanxide Series A Preferred Stock, the Lanxide Series E
Preferred Stock, the Lanxide Series F Preferred Stock, and the Lanxide Series G
Preferred Stock.
"Lanxide Common Stock" shall mean the shares of common stock, par
value $.01 per share, of Lanxide.
"Lanxide Common Stock Equivalents" shall mean the collective reference
to shares of Lanxide Common Stock which are issuable upon (a) the exercise of
all outstanding Existing Lanxide Warrants and Lanxide Stock Options, (b) the
exercise of the Warrant issued pursuant to this Agreement, (c) the conversion of
all shares of outstanding Lanxide Preferred Stock which, by their terms, are
convertible into shares of Lanxide Common Stock, including without limitation,
the Series F Preferred Stock issued pursuant to this Agreement, and (d) all
shares of Lanxide Common Stock issuable pursuant to Lanxide's Deferred
Compensation Plans.
"Lanxide Companies" shall mean, collectively, Lanxide and all Lanxide
Subsidiaries.
"Lanxide Deferred Compensation Plan" shall mean the deferred
compensation plan for Lanxide employees adopted June 1993, as amended through
November 14, 1995, pursuant to which the deferred portion of a Lanxide
employee's compensation is payable in cash or Lanxide Common Stock at a rate
equal to the greater of $25 per share or the fair market value (as defined) of
Lanxide Common Stock as at November 14, 1996.
"Lanxide Disclosure Schedule" shall mean the schedules furnished by
Lanxide to Commodore relating to certain of the representations and warranties
of Lanxide contained in this Agreement, which disclosure schedules shall
identify and make reference to the specific sections in this Agreement to which
each disclosure contained therein relates.
"Lanxide Fairness Opinion" shall mean the written opinion of
Pennsylvania Merchant Group Ltd. ("PMG"), or such other nationally recognized
investment bank as the Special Committee of the Board of Directors of Lanxide
shall select to render its opinion, to the effect that this Agreement and the
transactions contemplated hereby are fair to Lanxide from a financial point of
view.
"Lanxide Financial Statements" shall mean (i) the audited consolidated
balance sheets (including related notes and schedules) of Lanxide as of
September 30, 1996 and September 30, 1995, and the related audited statements of
income, changes in stockholders' equity and changes in financial position or
cash flows (including related notes and schedules, if any) for the three fiscal
years ended September 30, 1996 and (ii) the unaudited consolidated balance
sheets (including related notes and schedules) of Lanxide as of March 31, 1997
and March 31, 1996 and the related unaudited statements of income, changes in
stockholders' equity and changes in financial position or cash flows (including
related notes and schedules, if any) for the six months ended March 31, 1997 and
March 31, 1996, respectively, as filed by Lanxide in SEC Documents.
"Lanxide Preferred Stock" shall mean the collective reference to the
Lanxide Series A Preferred Stock, the Lanxide Series E Preferred Stock, the
Lanxide Series F Preferred Stock, and the Lanxide Series G Preferred Stock.
"Lanxide Series A Preferred Stock" shall mean the shares of Series A
Convertible Preferred Stock, par value $.01 per share and liquidation value
$80 per share, of Lanxide.
"Lanxide Series E Preferred Stock" shall mean the shares of 7%
cumulative redeemable shares of Series E Preferred Stock, par value $.01 per
share and $10 per share liquidation value, of Lanxide.
"Lanxide Series F Preferred Stock" shall mean the shares of Lanxide
Preferred Stock authorized pursuant to the Series F Certificate of Designation.
"Lanxide Series G Preferred Stock" shall mean the shares of Lanxide
Preferred Stock authorized pursuant to the Series G Certificate of Designation.
"Lanxide Stock Options" shall mean the options issued by any of the
Lanxide Companies to purchase shares of Lanxide Common Stock which are
outstanding as at the Closing Date.
"Lanxide Subsidiaries" shall mean the Subsidiaries of Lanxide and the
other Lanxide Subsidiaries described in Section 3.3 of this Agreement and any
other corporation, limited liability company, general or limited partnership,
limited liability partnership or other organization acquired as a Subsidiary of
Lanxide in the future.
"Material Adverse Change" or "Material Adverse Effect" shall mean,
when used with respect to Commodore or Lanxide, as the case may be, any change
or effect that is or would reasonably be expected (so far as can be foreseen at
the time) to be materially adverse to the business, properties, assets,
liabilities, condition (financial or otherwise), or results of operations of
Lanxide and its Subsidiaries taken as a whole, or Commodore and its Subsidiaries
taken as a whole, or to the ability of Lanxide or Commodore to perform its
obligations under this Agreement.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
"Party" shall mean the individual reference to either Commodore or
Lanxide, and "Parties" shall mean the collective reference to both Commodore and
Lanxide.
"Pension Plans" shall mean any employee pension benefit plan as such
term is defined in Section 3(2) of ERISA which is maintained by Lanxide or any
Lanxide Subsidiary.
"Person" shall mean any individual, corporation, limited liability
company, partnership, association, trust, joint venture, agency or government
instrumentality, or any subdivision thereof.
"Regulatory Authorities" shall mean, collectively, any government
agency or instrumentality regulating or having jurisdiction over the business of
Lanxide or any Lanxide Subsidiary.
"Release" shall mean any release, spill, emission, discharge, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment (including, without limitation,
ambient air, surface water, groundwater and surface or subsurface strata) or
into or out of any property of any Hazardous Materials, including the movement
of Hazardous Materials through or in the air, soil, surface water, groundwater
or property.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC Documents" shall mean all reports and registration statements
filed, or required to be filed, by a Party or one of its Subsidiaries pursuant
to the Securities Laws.
"Securities Laws" shall mean the 1933 Act, the 1934 Act, the
Investment Company Act of 1940, as amended, the Investment Advisors Act of 1940,
as amended, the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder, together with all applicable
state securities laws.
"Series F Certificate of Designation" shall mean the Certificate of
Stock Designation of Lanxide establishing the Series F Preferred Stock and the
relative rights, preferences and limitations thereof, in substantially the form
of EXHIBIT A-1 annexed hereto.
"Series G Certificate of Designation" shall mean the Certificate of
Stock Designation of Lanxide establishing the Series G Preferred Stock and the
relative rights, preferences and limitations thereof, in substantially the form
of EXHIBIT A-2 annexed hereto.
"Shares" shall mean the collective reference to (i) 10,000 shares of
Lanxide Series G Preferred Stock to be purchased by Commodore on the Closing
Date pursuant to this Agreement; (ii) 10,000 shares of Series G Preferred Stock
to be purchased by Commodore on July 28, 1997 pursuant to this Agreement, and
(iii) subject to Commodore's receipt of the net proceeds of the "Post-Closing
Financing" described in Section 7.10 of this Agreement, 85,000 shares of Lanxide
Series G Preferred Stock to be purchased by Commodore on or before August 27,
1997 pursuant to this Agreement.
"Subsidiary" shall mean any Person of which the Person in question
owns or controls 50% or more of the outstanding equity interests, either
directly or through one or more Persons, the holders of which are generally
entitled to vote for the election of the board of directors or other governing
body of such entity.
"Voting Agreement" shall mean the voting agreement, dated of even date
herewith, among Bentley J. Blum, Laura Utley, Paul E. Hannesson, Suzanne
Hannesson, Marc S. Newkirk, Samuel Blum and Robert Utley, as stockholders of
Lanxide, and Bentley J. Blum, Paul E. Hannesson, David Mitchell, Herbert Cohen
and Kenneth Adelman, as holders of the proxy granted thereby, and in the form of
EXHIBIT C annexed hereto and made a part hereof.
"Warrant" shall mean the three (3) year warrant issued to Commodore on
the Closing Date, entitling the holder to purchase up to 250,000 shares of
Lanxide Series F Preferred Stock, at an exercise price of $100 per Warrant
Share, in substantially the form of EXHIBIT B annexed hereto.
"Warrant Shares" shall mean all or any portion of the 250,000 shares
of Lanxide Series F Preferred Stock which may be purchased upon exercise of the
Warrant.
2. ISSUANCE AND SALE OF THE SHARES AND WARRANT.
___________________________________________
2.1 SALE AND PURCHASE OF SHARES. Subject to the terms and conditions
of this Agreement, Commodore shall purchase and acquire from Lanxide, and
Lanxide shall issue and sell to Commodore not less than Twenty Thousand (20,000)
of the Shares and not more than One Hundred and Five Thousand (105,000) of the
Shares, for a purchase price of $100.00 per share, or an aggregate of
$10,500,000 if all of the Shares are purchased (the "Purchase Price").
Commodore shall purchase the Shares at the times, in the amounts and for the
consideration described in Section 2.2 below, and, upon receipt of such
consideration, Lanxide shall issue and deliver to Commodore one or more
certificates (in such denominations as may be requested by Commodore) for the
number of Shares so purchased.
2.2 METHOD OF PAYMENT OF PURCHASE PRICE FOR SHARES AND DELIVERY. On
each occasion as Shares are purchased pursuant to this Agreement (in accordance
with and subject to the terms and conditions contained herein), Lanxide shall
issue and deliver to Commodore one or more certificates (in such denominations
as may be requested by Commodore) representing the applicable number of Shares
purchased by Commodore on such occasion. Against delivery of such Shares, as
aforesaid, Commodore shall:
(a) on the Closing Date, pay to Lanxide, by wire transfer of
immediately available funds to Lanxide's designated bank account, an aggregate
of One Million ($1,000,000) Dollars, representing the Purchase Price for 10,000
of the Shares;
(b) on a date which shall be not later than July 25, 1997, pay
to Lanxide, by wire transfer of immediately available funds to Lanxide's
designated bank account, an aggregate of One Million ($1,000,000) Dollars,
representing the Purchase Price for an additional 10,000 Shares;
(c) subject to Commodore's receipt of the net proceeds of the
"Post-Closing Financing" described in Section 7.10 of this Agreement (unless
such condition shall be waived by Commodore), on a date which shall be not later
than three (3) Business Days from Commodore's receipt of such Post-Closing
Financing (unless such date shall be extended in writing by mutual agreement of
Commodore and Lanxide), pay to Lanxide the Purchase Price for 45,000 of the
Shares, by:
(i) cancelling an aggregate of Three Million ($3,000,000)
Dollars of indebtedness for money borrowed owed by Lanxide to
Commodore (the "Commodore Advances"), and
(ii) assuming from Lanxide and obtaining a release of Lanxide in
respect of, Lanxide's obligations to repay to Commodore's Subsidiary,
Commodore Applied Technologies, Inc. ("CXI"), an aggregate of One
Million Five Hundred Thousand ($1,500,000) Dollars of indebtedness for
money borrowed owed by Lanxide to CXI (the "CXI Advances"), and,
collectively with the Commodore Advances, the "Commodore
Indebtedness"), and
(d) subject to Commodore's receipt of the net proceeds of the
"Post-Closing Financing" described in Section 7.10 of this Agreement (unless
such condition shall be waived by Commodore), on a date which shall be not later
three (3) Business Days from Commodore's receipt of such Post-Closing Financing
(unless such date shall be extended in writing by mutual agreement of Lanxide
and Commodore), pay to Lanxide, by wire transfer of immediately available funds
to Lanxide's designated bank account, an aggregate of Four Million ($4,000,000)
Dollars, representing the Purchase Price for the remaining 40,000 Shares;
PROVIDED, that nothing herein contained shall be deemed to limit the right of
Commodore in the exercise of its sole discretion, on three (3) Business Days'
notice to Lanxide, to purchase Shares pursuant to Section 2.2(c) and this
Section 2.2(d), without having received the proceeds of a Post-Closing
Financing.
Other than as a result of a breach by Lanxide of any of its material
representations, warranties, covenants or agreements contained herein, the
obligations of Commodore contained in Sections 2.2(a) and (b) above are absolute
and unconditional, irrespective of consummation of the Post-Closing Financing or
any other event.
2.3 CERTAIN PAYMENTS AND DELIVERIES IN RESPECT OF COMMODORE
_______________________________________________________
INDEBTEDNESS.
____________
(a) Simultaneous with the closing of the purchase of the 40,000
Shares contemplated by Section 2.2(d) above, Lanxide shall pay in cash to each
of Commodore and CXI all interest, if any, accrued and owing through the date of
such purchase on all Commodore Advances and CXI Advances.
(b) Simultaneous with the closing of the purchase of the 45,000
Shares contemplated by Section 2.2(c) above (i) Lanxide shall assign to
Commodore and Commodore shall assume the obligations to pay all of the CXI
Advances, together with all accrued interest thereon, and Commodore shall cause
CXI to deliver to Lanxide a written release in respect of such obligations, and
(ii) Commodore and CXI shall deliver to Lanxide the originals of all promissory
notes evidencing the Commodore Advances, marked "paid in full."
2.4 ISSUANCE OF THE WARRANT. On the Closing Date, in
consideration for (a) the Purchase Price for the 10,000 Shares issued to
Commodore on the Closing Date, (b) Commodore's other commitments set forth in
Section 2.2 above, and (c) the payment of $250.00, Lanxide shall issue to
Commodore (in such denominations as may be requested by Commodore) the Warrant.
2.5 ADDITIONAL ADVANCES. Nothing contained in this Agreement
shall prohibit Commodore or any Affiliate of Commodore from making (in
Commodore's sole and absolute discretion) additional working capital advances to
Lanxide, as may be requested by the Board of Lanxide from time to time, all upon
such terms and conditions as the parties hereto may mutually agree.
3. REPRESENTATIONS AND WARRANTIES OF LANXIDE.
_________________________________________
Lanxide hereby represents and warrants to Commodore as follows:
3.1 ORGANIZATION, STANDING, AND AUTHORITY. Lanxide is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware, and is duly qualified to do business and in good standing in
each jurisdiction where its ownership or leasing of property or the conduct of
its business requires it to be so qualified (other than those in which the
failure to be duly qualified would not reasonably be expected to have a Material
Adverse Effect), and has all necessary corporate power and authority to carry on
its business as now conducted and to own, lease, and operate its assets,
properties and business. Lanxide has in effect all federal, state, local, and
foreign governmental authorizations necessary for it to own or lease its
properties and assets and to carry on its business as is now being conducted,
other than those the absence of which, either individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
3.2 CAPITAL STOCK.
(a) As of the date hereof, the authorized capital stock of
Lanxide consists of (i) 25,000,000 shares of Lanxide Common Stock, of which as
of the date hereof, 1,325,598 shares are issued and outstanding, and
(ii) 15,000,000 shares of Lanxide Preferred Stock, $.01 par value, of which
1,101,683 shares of Lanxide Series A Preferred Stock and 26,100 shares of
Lanxide Series E Preferred Stock are issued and outstanding. All of the issued
and outstanding shares of Lanxide Capital Stock are validly issued, fully paid
and nonassessable. None of the outstanding shares of Lanxide Capital Stock has
been issued in violation of any preemptive rights of the current or past
stockholders of Lanxide. As of the date hereof, Lanxide has reserved
(i) 409,768 shares of Lanxide Common Stock for issuance upon conversion of the
outstanding shares of Lanxide Series A Preferred Stock, (ii) an aggregate of
140,263 shares of Lanxide Common Stock issuable upon exercise of outstanding
Existing Lanxide Warrants, (iii) an aggregate of 328,952 shares of Lanxide
Common Stock issuable upon exercise of outstanding options for Lanxide Common
Stock granted by any of the Lanxide Companies, including those set forth on
Section 3.2(a) of the Lanxide Disclosure Schedule, pursuant to which options
covering not more than 300,820 shares of Lanxide Common Stock were outstanding
as of the date hereof, (iv) a maximum aggregate of 59,481 shares of Lanxide
Common Stock issuable pursuant to the Lanxide Deferred Compensation Plans, (v) a
maximum of 250,000 shares of Lanxide Series F Preferred Stock issuable upon
exercise of the Warrant, and (vi) an aggregate of 3,375,000 shares of Lanxide
Common Stock issuable upon full conversion of all of the Warrant Shares.
(b) Except as set forth in Section 3.2(a) of this Agreement, on
Section 3.2(a) of the Lanxide Disclosure Schedule or on Section 3.2(b) of
Lanxide Disclosure Schedule, there are no shares of capital stock or other
equity securities of Lanxide outstanding and no outstanding options, warrants,
scrip, rights to subscribe to, calls, or commitments of any character whatsoever
relating to, or securities or rights convertible into or exchangeable for,
shares of the capital stock of Lanxide or contracts, commitments,
understandings, or arrangements by which Lanxide is or may be bound to issue
additional shares of its capital stock or options, warrants, or rights to
purchase or acquire any additional shares of its capital stock. There are no
contracts, commitments, understandings, or arrangements by which Lanxide or any
of its Subsidiaries is or may be bound to transfer any shares of the capital
stock of any Lanxide Subsidiary, except for a transfer to Lanxide or any wholly-
owned Lanxide Subsidiary, and, except as disclosed on the Lanxide Disclosure
Schedule, there are no agreements, understandings, or commitments relating to
the rights of Lanxide to vote or to dispose of such shares.
3.3 LANXIDE SUBSIDIARIES. Section 3.3 of the Lanxide Disclosure
Schedule lists all of the Lanxide Subsidiaries in existence as of the date of
this Agreement. Except as set forth on Section 3.3(a) of the Lanxide Disclosure
Schedule, no equity securities of any of the Lanxide Subsidiaries are or may
become required to be issued (other than to Lanxide) by reason of any options,
warrants, scrip, rights to subscribe to, calls, or commitments of any character
whatsoever relating to, or securities or rights convertible into or exchangeable
for, shares of the capital stock of any Lanxide Subsidiary, and there are no
contracts, commitments, understandings, or arrangements by which any Lanxide
Subsidiary is bound to issue (other than to Lanxide) additional shares of its
capital stock or options, warrants, or rights to purchase or acquire any
additional shares of its capital stock. Except as provided in the Lanxide
Disclosure Schedule, all of the shares of capital stock of each Lanxide
Subsidiary held by Lanxide or another wholly-owned Lanxide Subsidiary are fully
paid and nonassessable and are owned by Lanxide or any Lanxide Subsidiary free
and clear of any claim, lien, or encumbrance. Each Lanxide Subsidiary is duly
organized, validly existing, and in good standing under the laws of the
jurisdiction in which it is incorporated or organized; has the corporate power
and authority necessary for it to own or lease its properties and assets and to
carry on its business as it is now being conducted; and has all federal, state,
local, and foreign governmental authorization necessary for it to own or lease
its properties and assets and to carry on its business as it is now being
conducted, except for such governmental authorizations the absence of which,
either individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect.
3.4 AUTHORITY.
(a) Lanxide has all requisite power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action in respect thereof on the part of Lanxide. This
Agreement has been duly executed and delivered by Lanxide and constitutes a
legal, valid, and binding obligation of Lanxide, enforceable against Lanxide in
accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws,
now or hereafter in effect, affecting the enforcement of creditors' rights
generally and except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding may be brought).
(b) Prior to the execution and delivery of this Agreement, the
Board of Directors of Lanxide (at a meeting duly called and held) approved this
Agreement and the other transactions contemplated hereby and the Special
Committee of the Board of Directors of Lanxide received the Lanxide Fairness
Opinion.
3.5 CONSENTS AND APPROVALS; NO VIOLATIONS. Except as set forth on
Section 3.5 of the Lanxide Disclosure Schedule, the execution and delivery of
this Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the provisions hereof will not, result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to the loss of a material benefit under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of Lanxide or any of its Subsidiaries under: (i) any
provision of the Certificate of Incorporation or By-laws of Lanxide or the
comparable charter or organization documents or by-laws of any of its
Subsidiaries, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease, agreement, instrument, permit, concession, franchise or
license applicable to Lanxide or any of its Subsidiaries, or (iii) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to Lanxide
or any of its Subsidiaries or any of their respective properties or assets,
other than, in the case of clauses (ii) and (iii), any such violations,
defaults, rights, liens, security interests, charges or encumbrances that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect or prevent the consummation of any of the transactions
contemplated hereby. No filing or registration with, or authorization, consent
or approval of, any domestic (federal and state), foreign (including provincial)
or supranational court, commission, governmental body, regulatory agency,
authority or tribunal (a "Governmental Entity") is required by or with respect
to Lanxide or any of its Subsidiaries in connection with the execution and
delivery of this Agreement by Lanxide or is necessary for the consummation of
the transactions contemplated by this Agreement, except for the filing of the
Certificates of Designation with the Secretary of State of the State of Delaware
and such consents, orders, authorizations, registrations, declarations and
filings the failure of which to obtain or make would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect and would
not prevent the consummation of any of the transactions contemplated hereby.
3.6 [INTENTIONALLY OMITTED]
3.7 TAX MATTERS.
(a) All federal, state, local, and foreign tax returns required
to be filed by or on behalf of any of the Lanxide Companies and which were due
on or prior to the date hereof have been timely filed, or requests for
extensions have been timely filed and granted and have not expired, and all
returns filed are complete and accurate to the best information and belief of
Lanxide, except to the extent that any failure to be correct and complete would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. All taxes shown on filed returns have been timely paid and
Lanxide and each of its Subsidiaries have complied with all rules and
regulations relating to the withholding of such taxes, except to the extent that
any failure to comply with such rules and regulations would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect. As
of the date of this Agreement, there is no audit, examination, deficiency, or
refund litigation or matter in controversy with respect to any taxes that would
reasonably be expected to have a Material Adverse Effect, except as reserved
against in the Lanxide Financial Statements. All taxes, interest, additions,
and penalties due with respect to completed and settled examinations or
concluded litigation have been paid.
(b) None of the Lanxide Companies has executed an extension or
waiver of any statute of limitations on the assessment or collection of any tax
due that is currently in effect.
(c) Adequate provision for any federal, state, local, or foreign
taxes due or to become due for any of the Lanxide Companies for the period or
periods through and including March 31, 1997, has been made and is reflected on
the March 31, 1997 unaudited Lanxide financial statements included in the
Lanxide Financial Statements.
(d) Deferred taxes of the Lanxide Companies have been provided
for in accordance with GAAP.
3.8 LANXIDE JOINT VENTURES. Section 3.8 of the Lanxide Disclosure
Schedule lists all of the active and inactive joint ventures among Lanxide or a
Lanxide Subsidiary and any third person, firm or corporation (individually, a
"Lanxide Joint Venture" and, collectively, "Lanxide Joint Ventures") as of the
date of this Agreement. The principal terms and conditions of each Lanxide
Joint Venture are disclosed on Section 3.8 of the Lanxide Disclosure Schedule
(which Schedule may make reference to, or incorporate therein, the disclosures
contained in specific documents previously filed by Lanxide with the SEC).
3.9 PROPERTIES. Except as disclosed or reserved against in the
Lanxide Financial Statements, the Lanxide Companies have good, valid and, in the
case of real property, marketable title to, or a valid leasehold interest in,
free and clear of all material liens, encumbrances, charges, defaults, or
equities of whatever character, all of the material properties and assets,
tangible or intangible, reflected in the Lanxide Financial Statements as being
owned by the Lanxide Companies as of the date hereof, except for defects in such
title or interest which would not have, individually or in the aggregate, a
Material Adverse Effect. To the best knowledge of Lanxide's management, all
buildings, and all fixtures, equipment, and other property and assets held under
leases or subleases by any of the Lanxide Companies, are held under valid
instruments which are in full force and effect (except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
other laws affecting the enforcement of creditors' rights generally and except
that the availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceedings may be brought) and each of the Lanxide Companies has complied with
the terms of all such leases or subleases to which it is a party and under which
it is in occupancy, except for failure to comply or be in full force and effect
which would not reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect. To the best knowledge of Lanxide's management,
the policies of fire, theft, liability, and other insurance maintained with
respect to the assets or businesses of the Lanxide Companies provide adequate
coverage against loss, and the fidelity bonds in effect as to which any of the
Lanxide Companies is a named insured are believed to be sufficient.
3.10 COMPLIANCE WITH LAWS. To the best knowledge of Lanxide's
management, each of the Lanxide Companies:
(a) is in compliance with all laws, regulations, reporting and
licensing requirements, and orders applicable to its business or employees
conducting its business, the breach or violation of which would reasonably be
likely, individually or in the aggregate, to have a Material Adverse Effect; and
(b) has received no notification or communication from any
agency or department of federal, state or local government or the Regulatory
Authorities or the staff thereof (i) asserting that any of the Lanxide Companies
is not in compliance with any of the statutes, regulations, or ordinances which
such governmental authority or Regulatory Authority enforces, which as a result
of such noncompliance, would reasonably be likely, individually or in the
aggregate, to result in a Material Adverse Effect, (ii) threatening to revoke
any license, franchise, permit, or governmental authorization which would
reasonably be likely, individually or in the aggregate, to have a Material
Adverse Effect, or (iii) requiring any of the Lanxide Companies to enter into a
cease and desist order, agreement, or memorandum of understanding.
3.11 EMPLOYEE BENEFIT PLANS.
(a) Lanxide has made available for inspection to Commodore
prior to the execution of this Agreement, complete and correct copies of all
pension, retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, bonus, or other incentive
plan, any other written employee program, arrangement, or agreement, any
medical, vision, dental, or other health plan, any life insurance plan, or any
other employee benefit plan or fringe benefit plan, including, without
limitation, any "employee benefit plan" as that term is defined in Section 3(3)
of ERISA, currently adopted, maintained by, sponsored in whole or in part by, or
contributed to by any of the Lanxide Companies or affiliate thereof for the
benefit of their employees, retirees, dependents, spouses, directors,
independents, spouses, directors, independent contractors, or other
beneficiaries that are eligible to participate, whether arrived at through
collective bargaining or otherwise (collectively, the "Lanxide Benefit Plans"),
and has delivered to Commodore prior to the execution of this Agreement a
summary of such Lanxide Benefit Plans. Any of the Lanxide Benefit Plans which
is an "employee pension benefit plan," as that term is defined in Section 3(2)
of ERISA, is referred to herein as an "ERISA Plan." No Lanxide Benefit Plan is
or has been a multiemployer plan within the meaning of Section 3(37) of ERISA.
(b) All Lanxide Benefit Plans are in compliance with the
applicable terms of ERISA and the Internal Revenue Code, and any other
applicable laws, rules, and regulations except in instances in which such non-
compliance would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(c) No Lanxide ERISA Plan is a defined benefit pension plan.
3.12 NO EXISTING VIOLATION; DEFAULT.
(a) Neither Lanxide nor any of its Subsidiaries is in violation
of (i) its charter or other organizational documents or by-laws, (ii) any
applicable law, ordinance or administrative or governmental rule or regulation,
or (iii) any order, decree or judgment of any governmental entity having
jurisdiction over Lanxide or any of its Subsidiaries, except for any violations
that, individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect. The properties, assets and operations of Lanxide and
its Subsidiaries are in compliance in all material respects with all applicable
federal, state, local and foreign laws, rules and regulations, orders, decrees,
judgments, permits and licenses relating to public and worker health and safety
and the protection of the environment (collectively, "Worker Safety Laws").
With respect to such properties, assets and operations, including any previously
owned, leased or operated properties, assets or operations, to the knowledge of
Lanxide management, there are no past or current events, conditions,
circumstances, activities, practices, incidents, actions or plans of Lanxide or
any of its Subsidiaries that may interfere with or prevent compliance or
continued compliance in all material respects with applicable Worker Safety
Laws, other than any such interference or prevention as would not, individually
or in the aggregate with any such other interference or prevention, reasonably
be expected to have a Material Adverse Effect.
(b) There is no existing event of default or event that, but
for the giving of notice or lapse of time, or both, would constitute an event of
default under any loan or credit agreement, note, bond, mortgage, indenture or
guarantee of indebtedness for borrowed money and there is no existing event of
default or event that, but for the giving of notice or lapse of time, or both,
would constitute an event of default under any lease, other agreement or
instrument to which Lanxide or any of its Subsidiaries is a party or by which
Lanxide or any such Subsidiary or any of their respective properties, assets or
businesses is bound which would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
3.13 MATERIAL CONTRACTS. Except as reflected in the Lanxide
Financial Statements, none of the Lanxide Companies, nor any of their respective
assets, business, or operations is as of the date of this Agreement a party to,
or is bound or affected by, or receives benefits under, any contract or
agreement or amendment thereto that in each case would be required to be filed
as an exhibit to a Form 10-K that has not been timely filed as an exhibit in an
SEC Document previously filed by Lanxide with the SEC and identified to
Commodore.
3.14 MATERIAL CONTRACT DEFAULTS. None of the Lanxide Companies is in
default, nor to the best knowledge of Lanxide is any other party in material
default, in any respect under any contract, agreement, commitment, arrangement,
lease, insurance policy, or other instrument to which such Lanxide Company is a
party or by which its respective assets, business, or operations may be bound or
affected or under which it or its respective assets, business, or operations
receives benefits, except for such breaches and defaults which would not be
expected to have, individually or in the aggregate, a Material Adverse Effect,
and there has not occurred any event that with the lapse of time or the giving
of notice, or both, would constitute such a breach or default. Neither Lanxide
nor any of its Subsidiaries is a party to or bound by any non-competition
agreement or any other agreement or obligation which purports to limit in any
material respect the manner in which, or the localities in which, Lanxide or any
such Subsidiary is entitled to conduct all or any material portion of the
business of Lanxide and its Subsidiaries taken as a whole.
3.15 LEGAL PROCEEDINGS. Except as set forth on Section 3.15 of the
Lanxide Disclosure Schedule, there are no actions, suits, or proceedings
instituted or pending, or to the best knowledge of Lanxide's management,
threatened (or unasserted but considered probable of assertion any of which if
asserted would have at least a reasonable probability of an unfavorable outcome)
against any of the Lanxide Companies, or against any property, asset, interest,
or right of any of them, that are reasonably expected to have either
individually or in the aggregate, a Material Adverse Effect or that are
reasonably expected to materially threaten or materially impede the consummation
of the transactions contemplated by this Agreement. None of the Lanxide
Companies is a party to any agreement or instrument or is subject to any charter
or other corporate restriction or any judgment, order, writ, injunction, decree,
rule, regulation, code or ordinance that threatens or might impede the
consummation of the transactions contemplated by this Agreement.
3.16 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since March 31, 1997,
except as disclosed on the Lanxide Disclosure Schedule, in the Lanxide Financial
Statements or in an SEC Document identified to Commodore, (a) neither Lanxide
nor any of its Subsidiaries has entered into any material oral or written
agreement or other transaction, that is not in the ordinary course of business
or that would reasonably be expected to result in a Material Adverse Effect on
Lanxide; (b) neither Lanxide nor any of its Subsidiaries has sustained any loss
or interference with its business or properties from fire, flood, windstorm,
accident or other calamity (whether or not covered by insurance) that has had or
that would reasonably be expected to have a Material Adverse Effect; (c) there
has been no material change in the indebtedness of Lanxide and its Subsidiaries,
no change in the outstanding shares of capital stock of Lanxide except for the
issuance of shares of Lanxide Common Stock pursuant to the Lanxide Stock Options
and Existing Lanxide Warrants and no dividend or distribution of any kind
declared, paid or made by Lanxide on any class of its capital stock except for
dividends required to be paid on currently outstanding shares of the Lanxide
Preferred Stock; and (d) there has been no event causing a Material Adverse
Effect, nor any development that would, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; and during the
period from March 31, 1997 through the date of this Agreement, neither Lanxide
nor any of its Subsidiaries has taken any action that, if taken without
Commodore's consent during the period from the date of this Agreement through
the Closing Date, would constitute a breach of Section 5.1 hereof.
3.17 INTELLECTUAL PROPERTY. Lanxide and its Subsidiaries own or have
a valid license to use all inventions, patents, trademarks, service marks, trade
names, copyrights, trade secrets, software, mailing lists and other intellectual
property rights (collectively, the "Lanxide Intellectual Property") necessary to
carry on their respective businesses as currently conducted; and neither Lanxide
nor any such Subsidiary has received any notice of infringement of or conflict
with, and, to Lanxide's knowledge, there are no infringements of or conflicts
with, the rights of others with respect to the use of any of the Lanxide
Intellectual Property that, in either such case, has had or would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or
result in material adverse publicity for Lanxide.
3.18 LABOR MATTERS. Except as disclosed on Section 3.18 of the
Lanxide Disclosure Schedule, neither Lanxide nor any of its Subsidiaries has any
labor contracts, collective bargaining agreements or material employment or
consulting agreements with any persons employed by or otherwise performing
services primarily for Lanxide or any of its Subsidiaries (the "Lanxide Business
Personnel") or any representative of any Lanxide Business Personnel. Except as
set forth on the Lanxide Disclosure Schedule, neither Lanxide nor any of its
Subsidiaries has engaged in any unfair labor practice with respect to Lanxide
Business Personnel, and there is no unfair labor practice complaint pending
against Lanxide or any of its Subsidiaries with respect to Lanxide Business
Personnel which, in either such case, would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Except as set forth
on the Lanxide Disclosure Schedule, there is no material labor strike, dispute,
slowdown or stoppage pending or, to the knowledge of Lanxide, threatened against
Lanxide or any of its Subsidiaries, and neither Lanxide nor any of its
Subsidiaries has experienced any material primary work stoppage or other
material labor difficulty involving its employees during the last three years,
except for any of the foregoing which would not have a Material Adverse Effect.
3.19 SEC FILINGS. Lanxide has filed all documents required to be
filed prior to the date hereof by it and its Subsidiaries with the SEC (the
"Lanxide SEC Documents"). As of their respective dates, or if amended as of the
date of the last such amendment, the Lanxide SEC Documents complied, and all
documents required to be filed by Lanxide or any of its Subsidiaries with the
SEC after the date hereof and prior to the Closing Date (the "Subsequent Lanxide
SEC Documents") will comply, in all material respects with the requirements of
the 1933 Act or the 1934 Act, as the case may be, and the applicable rules and
regulations promulgated thereunder and none of the Lanxide SEC Documents
contained, and the Subsequent Lanxide SEC Documents will not contain, any untrue
statement of a material fact or omitted, or will omit, to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, or are to be made, not
misleading. The consolidated financial statements of Lanxide included in the
Lanxide SEC Documents are in accordance with the books and records of the
Lanxide Companies and fairly present, and those to be included in the Subsequent
Lanxide SEC Documents will be in accordance with the books and records of the
Lanxide Companies and will fairly present, the consolidated financial position
of Lanxide and its consolidated Subsidiaries, as at the respective dates thereof
and the consolidated results of their operations and their consolidated cash
flows for the respective periods then ended (subject, in the case of the
unaudited statements, to normal year-end audit adjustments and to any other
adjustments described therein) in conformity with GAAP (except, in the case of
the unaudited statements, as permitted by Form 10-Q of the SEC) applied on a
consistent basis during the periods involved (except as may be indicated therein
or in the notes thereto). Since September 30, 1996, Lanxide has not made any
change in the accounting practices or policies applied in the preparation of its
financial statements, except as may be required by GAAP.
3.20 ENVIRONMENTAL MATTERS.
(a) Lanxide and its Subsidiaries are in compliance in all
material respects with all applicable Environmental Laws (which compliance
includes, but is not limited to, the possession by Lanxide and its Subsidiaries
of all permits and other governmental authorizations required under applicable
Environmental Laws, and compliance with the terms and conditions thereof),
except for failures to comply which would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect. Neither
Lanxide nor any of its Subsidiaries has received any written communication,
whether from a governmental authority, citizens group, employee or otherwise,
that alleges that Lanxide or any of its Subsidiaries is not in such compliance,
and there are no past or present actions, activities, circumstances conditions,
events or incidents that may prevent or interfere with such compliance in the
future.
(b) There is no Environmental Claim pending or, to the knowledge
of Lanxide, threatened against Lanxide or any of its Subsidiaries or, to the
knowledge of Lanxide, against any Person whose liability for any Environmental
Claim Lanxide or any of its Subsidiaries has or may have retained or assumed
either contractually or by operation of law which would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the Release, emission, discharge, presence or disposal of any Hazardous
Material, which could form the basis of any Environmental Claim against Lanxide
or any of its Subsidiaries, or to the knowledge of Lanxide, against any Person
whose liability for any Environmental Claim Lanxide or any of its Subsidiaries
has or may have retained or assumed either contractually or by operation of law
which would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(d) Neither Lanxide nor any of its Subsidiaries has placed,
stored, deposited, discharged, buried, dumped or disposed of Hazardous Materials
or any other wastes produced by, or resulting from, any business, commercial or
industrial activities, operations or processes, on, beneath or adjacent to any
property currently owned, operated or leased by Lanxide or any of its
Subsidiaries, except for inventories of such substances to be used, and wastes
generated therefrom, in the ordinary course of business of Lanxide and its
Subsidiaries (which inventories and wastes, if any, were and are stored or
disposed of in accordance with applicable Environmental Laws and in a manner
such that there has been no Release of any such substances into the indoor or
outdoor environment), except where Lanxide and its Subsidiaries have failed to
comply with Environmental Laws applicable to the above matters or have failed to
store such inventories and wastes in a manner described above and such failures
would not be reasonably expected, individually or in the aggregate, to have a
Material Adverse Effect.
(e) Lanxide has made available for inspection to Commodore,
complete and correct copies and results of any reports, studies, analyses, tests
or monitoring possessed or initiated by Lanxide or any of its Subsidiaries
pertaining to Hazardous Materials in, on, beneath or adjacent to any property
currently or formerly owned, operated or leased by Lanxide or any of its
Subsidiaries, or regarding Lanxide's or any of its Subsidiaries' compliance with
applicable Environmental Laws.
4. REPRESENTATIONS AND WARRANTIES OF COMMODORE.
___________________________________________
Commodore does hereby represent and warrant to Lanxide as follows:
4.1 ORGANIZATION, STANDING, AND AUTHORITY. Commodore is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware, and is duly qualified to do business, and in good
standing in each jurisdiction where its ownership or leasing of property or the
conduct of its business requires it to be so qualified other than those in which
the failure to be duly qualified would not reasonably be expected to have a
Material Adverse Effect on Commodore, and has corporate power and authority to
carry on its business as now conducted and to own, lease, and operate its
assets, properties, and business.
4.2 AUTHORITY.
(a) Commodore has all requisite power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have been duly and validly authorized by
all necessary corporate action in respect thereof on the part of Commodore.
This Agreement has been duly executed and delivered by Commodore and constitutes
a legal, valid, and binding obligation of Commodore, enforceable against
Commodore in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws, now or hereafter in effect, affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding may be brought).
(b) The Board of Directors of Commodore has approved this
Agreement and the transactions contemplated hereby.
4.3 CONSENTS AND APPROVALS; NO VIOLATIONS. The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not, result
in any violation of, or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material benefit under, or
result in the creation of any lien, security interest, charge or encumbrance
upon any of the properties or assets of Commodore or any of its Subsidiaries
under: (i) any provision of the Certificate of Incorporation or By-laws of
Commodore or the comparable charter or organization documents or by-laws of any
of its Subsidiaries, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease, agreement, instrument, permit, concession, franchise or
license applicable to Commodore or any of its Subsidiaries or (iii) any
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Commodore or any of its Subsidiaries or any of their respective properties or
assets, other than, in the case of clauses (ii) and (iii), any such violations,
defaults, rights, liens, security interests, charges or encumbrances that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Commodore and would not materially impair the ability
of Commodore to perform its obligations hereunder or prevent the consummation of
any of the transactions contemplated hereby. No filing or registration with, or
authorization, consent or approval of, any domestic (federal and state), foreign
(including provincial) or supranational court, commission, governmental body,
regulatory agency, authority or tribunal (a "Governmental Entity") is required
by or with respect to Commodore or any of its Subsidiaries in connection with
the execution and delivery of this Agreement by Commodore or is necessary for
the consummation of this Agreement and the other transactions contemplated by
this Agreement, except for such consents, orders, authorizations, registrations,
declarations and filings the failure of which to obtain or make would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on Commodore and would not materially impair the ability of
Commodore to perform its obligations hereunder or prevent the consummation of
any of the transactions contemplated hereby.
4.4 ACQUISITION OF SHARES FOR INVESTMENT. All Shares, Warrants
and Warrant Shares acquired by Commodore hereunder are being acquired for
investment purposes only and not with a view to any public distribution thereof,
and Commodore will not offer to sell or otherwise dispose of such securities in
violation of the applicable provisions of the Securities Act of 1933, as
amended.
5. CONDUCT PENDING THE CLOSING DATE.
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5.1 CONDUCT OF BUSINESS - NEGATIVE COVENANTS. From the date of this
Agreement until the earlier of the Closing Date or the termination of this
Agreement, Lanxide covenants and agrees that it will not do or agree or commit
to do, and shall not permit any of its Subsidiaries to do or to commit to do,
any of the following without the prior written consent of Commodore, which
consent shall not be unreasonably delayed or withheld:
(a) except as set forth on the Lanxide Disclosure Schedule, or
as expressly contemplated by this Agreement, amend its certificate of
incorporation or bylaws; or
(b) except as expressly permitted in this Agreement or required
by the specific terms of Lanxide Capital Stock, Existing Lanxide Warrants,
Lanxide Stock Options or Lanxide Deferred Compensation Plans, repurchase,
redeem, or otherwise acquire or exchange, directly or indirectly, any shares of
its capital stock or any securities convertible into any shares of its capital
stock; or
(c) except as expressly contemplated by this Agreement or as
disclosed in the Lanxide Disclosure Schedule, acquire, or agree to acquire, any
business or any corporation, partnership, limited liability company,
association, firm, or organization or division thereof, or otherwise acquire or
agree to acquire any assets other than in connection with (i) internal
reorganizations or consolidations involving existing Subsidiaries, or (ii) the
creation of new Subsidiaries organized to conduct or continue activities
otherwise permitted by this Agreement; or
(d) except as disclosed in the Lanxide Disclosure Schedule, sell
or otherwise dispose of, or agree to sell, lease or otherwise dispose of:
(i) any shares of capital stock of any Lanxide Subsidiary (unless any such
shares of stock are sold or otherwise transferred to Lanxide or any of its
wholly-owned Subsidiaries); (ii) any Lanxide Subsidiary; (iii) any substantial
part of the assets of Lanxide or any Lanxide Subsidiary, other than licenses of
technology in the ordinary course of Lanxide's business; or (iv) any asset other
than in the ordinary course of business for reasonable and adequate
consideration; provided, however, such covenant in this subparagraph (d) shall
not be applicable to the sale of shares or assets sold after the date of this
Agreement in transactions not otherwise prohibited by this Agreement resulting
in proceeds not in excess of $10,000; or
(e) except as disclosed in the Lanxide Disclosure Schedule or as
contemplated hereby, incur, directly or indirectly, any additional debt
obligation or other obligation for borrowed money, other than (i) the
replacement of existing short-term debt with other short-term debt in the same
or lesser aggregate principal amount, or (ii) indebtedness of any Lanxide
Company to another Lanxide Company not in excess of an aggregate of $25,000; or
(f) grant any increase in compensation or benefits to its
employees or to its officers, except in accordance with past practice or as
required by law; pay any bonus except in accordance with past practice or the
provisions of any applicable program or plan adopted by the Board of Directors
of Lanxide prior to the date of this Agreement; enter into any severance
agreements with its officers or the officers of any Lanxide Subsidiary except as
previously disclosed; grant any material increase in fees or other increases in
compensation or other benefits to any of its directors; or effect any change in
retirement benefits for any class of its employees or officers (unless such
change is required by applicable law) that would materially increase the
retirement benefit liabilities of Lanxide and its Subsidiaries on a consolidated
basis; or
(g) except as disclosed on the Lanxide Disclosure Schedule,
amend any existing employment contract between Lanxide or any Subsidiary thereof
and any person having a salary thereunder in excess of $100,000 per year (unless
such amendment is required by law) to increase the compensation or benefits
payable thereunder or enter into any new employment contract with any person
having a salary thereunder in excess of $100,000; or
(h) adopt any new employee benefit plan of Lanxide or any
Lanxide Subsidiary or make any material change in or to any existing employee
benefit plan of Lanxide or any Lanxide Subsidiary, other than any such change
that is required by law or that, in the opinion of counsel, is necessary or
advisable to maintain the tax-qualified status of any such plan; or
(i) (i) declare, set aside or pay any dividends on, or make any
other actual, constructive or deemed distributions in respect of, any of its
capital stock, or otherwise make any payments to its stockholders in their
capacity as such (other than dividends required to be paid on the outstanding
shares of Lanxide Preferred Stock); (ii) split, combine or reclassify any of its
capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock; or
(iii) purchase, redeem or otherwise acquire any shares of its capital stock or
those of any Subsidiary or any other securities thereof or purchase, redeem or
otherwise acquire or extend the expiration of or otherwise amend, any rights,
warrants or options to acquire any such shares or other securities; or
(j) except to the extent set forth in Section 2.2 hereof, issue,
deliver, sell, pledge, dispose of or otherwise encumber any shares of its
capital stock, any other voting securities or equity equivalent or any
securities convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities, equity equivalent or convertible securities,
other than (i) the issuance of shares of Lanxide Common Stock upon the exercise
of currently outstanding Lanxide Stock Options, Existing Lanxide Warrants, or
Lanxide Deferred Compensation Plans, and (ii) the issuance of stock options to
employees of Lanxide or Commodore or any of its Subsidiaries in the ordinary
course of business and consistent with past practice.
5.2 CONDUCT OF BUSINESS-AFFIRMATIVE COVENANTS. Unless the prior
written consent of Commodore shall have been obtained, Lanxide shall and shall
cause its Subsidiaries to operate its businesses in accordance with the ordinary
course of its business as currently conducted and, to the extent consistent
herewith, use its reasonable best efforts to preserve intact its business
organizations and assets, maintain its rights and franchises, keep available
services of its current officers and employees and preserve its relationships
with customers, suppliers and others having business dealings with it, all to
the end that its goodwill and ongoing business shall be unimpaired at the
Closing Date, and to take no action which would (i) adversely affect the ability
of Lanxide to obtain any necessary approvals of governmental authorities
required for the transactions contemplated hereby without imposition of a
condition or restriction that would have a Material Adverse Effect on Lanxide,
or (ii) adversely affect the ability of Lanxide to perform its covenants and
agreements under this Agreement.
5.3 ADVERSE CHANGES IN CONDITION. Lanxide shall give prompt written
notice to Commodore concerning any Material Adverse Change from the date of this
Agreement until the Closing Date, or upon becoming aware of the occurrence or
impending occurrence of any event or circumstance which would cause or
constitute a material breach of any of the representations, warranties, or
covenants of Lanxide contained herein. Lanxide shall use its best efforts to
prevent any such breach or promptly remedy the same.
6. CERTAIN COVENANTS AND AGREEMENTS.
________________________________
6.1 INDEMNIFICATION; DIRECTORS AND OFFICERS' INSURANCE.
(a) For six years after the Closing Date, Lanxide shall
indemnify, defend and hold harmless, and Commodore shall take no action to
prevent Lanxide from indemnifying, defending and holding harmless, any person
who is now, or has been at any time prior to the date hereof, or who becomes
prior to the Closing Date, a director, officer or consultant (an "Indemnified
Person") of any of the Lanxide Companies against all losses, claims, damages,
liabilities, costs and expenses (including attorneys' fees and expenses),
judgments, fines, losses and amounts paid in settlement in connection with any
actual or threatened action, suit, claim, proceeding or investigation (each, a
"Claim") to the extent that any such Claim is based on, or arises out of:
(i) the fact that such Indemnified Person is or was a director or officer of one
or more of the Lanxide Companies or is or was serving at the request of one or
more of the Lanxide Companies as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise; or (ii) this Agreement or
any of the transactions contemplated hereby, in each case to the extent that any
such Claim pertains to any matter or fact arising, existing or occurring prior
to or at the Closing Date, regardless of whether such Claim is asserted or
claimed prior to, at or after the Closing Date, to the full extent permitted
under the DGCL, the certificates of incorporation or by-laws of Lanxide or any
indemnification agreement in effect at the date hereof or as of the Closing
Date, including provisions relating to advancement of expenses incurred in the
defense of any such Claim; PROVIDED, HOWEVER, that Lanxide shall not be required
to indemnify any Indemnified Person in connection with any proceeding (or
portion thereof) involving any Claim initiated by such Indemnified Person,
unless the initiation of such proceeding (or portion thereof) was authorized by
the Board of Directors of Lanxide, or unless such proceeding is brought to
enforce rights under this Section 6.1. Without limiting the generality of the
preceding sentence, in the event any Indemnified Person becomes involved in any
Claim, after the Closing Date, Lanxide shall, and Commodore shall take no action
to, prevent Lanxide to periodically advance to such Indemnified Person its legal
and other expenses (including the cost of any investigation and preparation
incurred in connection therewith), subject to the providing by such Indemnified
Person of an undertaking to reimburse all amounts so advanced in the event of a
final non-appealable determination by a court of competent jurisdiction that
such Indemnified Person is not entitled thereto.
(b) Commodore and Lanxide agree that all rights to
indemnification or liabilities, and all limitations with respect thereto,
existing in favor of any Indemnified Person, as provided in the certificates of
incorporation or by-laws of any of the Lanxide Companies and any indemnification
agreement in effect at the date hereof or as of the Closing Date, shall survive
the Closing Date and shall continue in full force and effect, without any
amendment thereto, for a period of six years from the Closing Date to the extent
such rights, liabilities and limitations are consistent with the DGCL; PROVIDED,
HOWEVER, that in the event any Claim is asserted or made within such six-year
period, all such rights, liabilities and limitations in respect of any such
Claim shall continue until disposition thereof; PROVIDED, FURTHER, that any
determination required to be made with respect to whether an Indemnified
Person's conduct complies with the standards set forth under the DGCL, the
certificate of incorporation or by-laws of any of the Lanxide Companies or any
such agreement, as the case may be, shall be made by independent legal counsel
selected by such Indemnified Person and reasonably acceptable to Commodore; and,
PROVIDED, FURTHER, that nothing in this Section 6.1 shall impair any rights or
obligations of any current or former director or officer of any of the Lanxide
Companies.
(c) Lanxide shall maintain, and Commodore shall take no action
to prevent Lanxide from maintaining, Lanxide's existing directors' and officers'
liability insurance policy ("D&O Insurance") for a period of not less than six
years after the Effective Date; PROVIDED, HOWEVER, that Lanxide may substitute
therefor policies of substantially similar coverage and amounts containing terms
no less advantageous to such former directors or officers; PROVIDED, FURTHER,
that if the existing D&O Insurance expires or is canceled during such period,
Lanxide shall use its best efforts to obtain substantially similar D&O
Insurance; and, PROVIDED, FURTHER, that Lanxide shall not be required to pay an
annual premium for D&O Insurance in excess of 150% of the last annual premium
paid prior to the Closing Date, but in such case shall purchase as much coverage
as possible for such amount.
(d) The provisions of this Section 6.1 are intended to be for
the benefit of, and shall be enforceable by, each Indemnified Person, his or her
heirs and his or her personal representatives.
6.2 SUPERIOR OFFER.
(a) In the event and only in the event that, on or before the
date on which Commodore shall have completed the purchase of all 105,000 of the
Shares in accordance with Sections 2.2(a) through (d) hereof, Lanxide shall
receive from a financially capable third party not affiliated with either
Commodore or Lanxide, an offer and commitment to either acquire control of
Lanxide or to otherwise provide financing to Lanxide in such amounts and upon
such terms and conditions which, in the opinion of the Board of Directors of
Lanxide (Messrs. Bentley J. Blum and Paul E. Hannesson abstaining), is more
favorable to Lanxide and its stockholders from a financial point of view than
the sale of the Shares and Warrant to Commodore pursuant to this Agreement (a
"Superior Offer"), then Lanxide may terminate this Agreement, subject to making
the payments to Commodore contemplated by Section 10.3 below.
(b) Should Lanxide have the right and shall elect to terminate
this Agreement on or before August 27, 1997 as the result of receipt of a
Superior Offer, in addition to receipt of the payments contemplated by Section
10.3 below, Commodore shall be entitled to retain and exercise the Warrant in
accordance with its terms.
(c) In the event that Commodore shall NOT have purchased and
paid for all 105,000 of the Shares by August 27, 1997, for any reason OTHER than
Lanxide's prior receipt of a Superior Offer or Lanxide's breach of its covenants
and agreements contained herein, in the event that Lanxide shall thereafter
consummate a financing under a Superior Offer or a "Liquidity Event" (as defined
in the Series F Certificate of Designation) shall occur, in each case subsequent
to August 27, 1997, then simultaneous with consummation of such Superior Offer
or Liquidity Event, Lanxide may redeem for $0.001 per Warrant Share, that
portion of the Warrant that could not have then been exercised by tendering
previously purchased Shares for Warrant Shares.
(d) In considering any other proposal to provide financing, the
Board of Directors of Lanxide may rely upon the opinion of its investment banker
and such other persons as it deems appropriate.
6.3 AGREEMENTS AS TO EFFORTS TO CONSUMMATE. Subject to the terms and
conditions of this Agreement, each of Lanxide and Commodore agrees to use all
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper, or advisable under applicable
laws and regulations to consummate and make effective, as soon as practicable
after the date of this Agreement, the transactions contemplated by this
Agreement, including, without limitation, in the case of Commodore, using
reasonable best efforts to obtain the funds necessary to consummate the
transactions contemplated herein. Each of Lanxide and Commodore shall use its
best efforts to obtain consents of all third parties and governmental bodies
necessary or desirable for the consummation of the transactions contemplated by
this Agreement. In addition to, and not in lieu of the foregoing:
(a) Subject to applicable notice requirements under the
Securities Exchange Act of 1934, as amended, Lanxide shall, either simultaneous
with, or in no event later than three (3) Business Days following the Closing
Date, call a special telephonic meeting of its Board of Directors for the
purpose of (i) expanding the number of members of the entire Lanxide Board of
Directors to seven (7) persons, and (ii) appointing four (4) persons designated
by Commodore (which may include Messrs. Bentley J. Blum, Paul E. Hannesson
and/or Stephen A. Weiss) to serve as the designees of the holders of the Shares
on the Lanxide Board of Directors; and
(b) by their execution of this Agreement, each of
Bentley J. Blum and Paul E. Hannesson, in their capacities as holders of Lanxide
Common Stock, do hereby: (i) approve, adopt and consent to this Agreement, the
Certificates of Designation, the authorization and issuance of the Shares Series
F Preferred Stock and Shares of Series G Preferred Stock by the Lanxide Board of
Directors, and all of the transactions contemplated hereby and thereby; and
(ii) covenant and agree to vote all of their shares of Lanxide Common Stock at
any regular or special meeting of stockholders of Lanxide which may hereafter be
called to ratify this Agreement, the Certificates of Designation and the
transactions contemplated hereby and thereby.
6.4 LANXIDE EMPLOYEE STOCK OPTIONS. The Board of Directors of
Lanxide shall, within thirty (30) days from the date hereof, grant to those
employees and consultants of Lanxide and its Subsidiaries who currently hold
outstanding options and warrants to purchase Lanxide Common Stock (the "Old
Lanxide Options") under certain Lanxide Companies existing incentive plans (the
"Option Holders"), that number of stock options under Lanxide stock option
plan(s) now or hereafter in effect as shall equal 100% of the aggregate number
of Old Lanxide Options held by them on the date hereof (the "New Lanxide
Options"). Notwithstanding the foregoing, it is expressly understood and
agreed that:
(a) All New Lanxide Options: (i) shall be exercisable at an
exercise price of $7.41 per share (subject to customary adjustments in such
exercise price as a result of stock splits, stock dividends and
reclassifications of Lanxide's common stock); (b) shall be exercisable ONLY
commencing July 1, 2000, and then only to the extent set forth in Section 6.4(b)
hereof; (c) shall vest over a period of five (5) years from the date of grant at
the rate of 20% per year; provided, that the holder shall be in the continuous
full time employment of Lanxide during such period; and (d) shall be subject to
the substantially the same restrictions and risks of forfeiture as are contained
in Old Lanxide Options.
(b) The New Lanxide Options shall be exercisable by the holder
(to the extent vested) after June 30, 2000, ONLY in the event that by
June 30, 2000, as a result of the full exercise of the Warrant, ALL Warrant
Shares issuable under the Warrant shall have been issued (the "Maximum Warrant
Shares"). In the event and to the extent that on June 30, 2000 (the expiration
date of the Warrant) all 250,000 Warrant Shares shall not have been issued upon
such full exercise of the Warrant, then holders of the New Lanxide Options shall
be entitled to exercise such New Lanxide Options ONLY to the extent of the
product of multiplying (i) the number of shares of Lanxide Common Stock issuable
upon full exercise of all New Lanxide Options issued to each such holder, by
(ii) a fraction, (x) the numerator of which shall be the aggregate number of
Warrant Shares issued and outstanding at June 30, 2000, and (y) the denominator
of which shall be the Maximum Warrant Shares.
7. CONDITIONS PRECEDENT TO COMMODORE'S PERFORMANCE.
_______________________________________________
In addition to the fulfillment of the parties' agreements in Section 6
above, the obligations of Commodore to consummate the transactions contemplated
by this Agreement are further subject to the satisfaction, on or before the
Closing Date and on each subsequent date on which Commodore is obligated to
purchase Shares pursuant to Section 2.2 (except for the condition set forth in
Section 7.10, which shall only apply to the purchase of Shares pursuant to
Section 2.2(c) and 2.2(d) hereof), of all the following conditions, any one or
more of which may be waived in writing by Commodore:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by Lanxide in this Agreement and in the Lanxide Disclosure
Schedule shall be true and correct in all material respects on and as of the
Closing Date, and on each subsequent date on which Commodore shall purchase
Shares, as though such representations and warranties were made on and as of
that date.
7.2 PERFORMANCE. Lanxide shall have performed, satisfied and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed, satisfied or complied with by Lanxide on or before
the Closing Date, and on each subsequent date on which Commodore shall purchase
Shares, including without limitation, the issuance and delivery of the Shares
and the Warrants to Commodore, against payment of the Purchase Price in the
manner herein provided.
7.3 CERTIFICATION. Commodore shall have received a certificate,
dated the Closing Date, and on each subsequent date on which Commodore shall
purchase Shares, signed by Lanxide, certifying, in such detail as Commodore and
its counsel may reasonably request, that the conditions specified in Sections
7.1 and 7.2 above have been fulfilled.
7.4 OPINION OF COUNSEL. Commodore shall have received an opinion of
Skadden, Arps, Slate, Maegher & Flom, LLP, counsel to Lanxide, as to such
matters incidental to the transactions contemplated hereby as may be reasonably
requested by Commodore, such opinion to be in form and substance satisfactory to
Commodore.
7.5 GOOD STANDING CERTIFICATE. Lanxide shall have delivered to
Commodore a certificate or telegram issued by the Secretary of State of
Delaware, evidencing the good standing of Lanxide in the State of Delaware as of
a date not more than fifteen (15) days prior to the Closing Date and on each
subsequent date on which Commodore shall purchase Shares.
7.6 ABSENCE OF LITIGATION. Except as listed in the Lanxide
Disclosure Schedule, no action, suit or proceeding by or before any court or any
governmental body or authority, against Lanxide or pertaining to the
transactions contemplated by this Agreement or their consummation, shall be
pending or threatened on the Closing Date, and on each subsequent date on which
Commodore shall purchase Shares, which action, suit or proceeding would, if
determined adversely, have a Material Adverse Effect.
7.7 CONSENTS. All necessary disclosures to and agreements and
consents of (a) any parties to any material contracts and/or any licensing
authorities which are material to Lanxide's business, and (b) any governmental
authorities or agencies to the extent required in connection with the
transactions contemplated by this Agreement, shall have been obtained and true
and complete copies thereof delivered to Commodore.
7.8 NO MATERIAL ADVERSE CHANGE. From and after the date hereof,
there shall not have occurred any event or condition materially and adversely
affecting the financial condition, results of operations or business prospects
of Lanxide from those reflected in the Lanxide Financial Statements or disclosed
in this Agreement or the Lanxide Disclosure Schedule, except for matters
resulting from adverse changes in economic conditions affecting businesses
generally.
7.9 CERTIFICATES OF DESIGNATION. The Series F Certificate of
Designation and the Series G Certificate of Designation shall have been filed
with the Secretary of State of the State of Delaware and shall remain in full
force and effect.
7.10 FINANCING. Commodore shall have received, on or prior to August
27, 1997, net proceeds from one or more public or private offerings of its debt
and/or equity securities in an aggregate amount of not less than $10,500,000
(the "Post-Closing Financing"), all upon such terms and conditions as shall be
satisfactory to the Board of Directors of Commodore.
7.11 FAIRNESS OPINION. On or prior to the Closing Date, Commodore
shall have received the Commodore Fairness Opinion, and same shall not have been
withdrawn or modified in any respect not satisfactory to Commodore.
7.12 VOTING AGREEMENT. The Voting Agreement shall have been fully
executed and delivered by the parties thereto.
7.13 RECOMPOSITION OF THE BOARD Commodore's designees for election
to Lanxide's Board of Directors, immediately upon the Closing, shall be
nominated and appointed to Lanxide's Board of Directors in accordance with the
provisions of Section 6.3(a) hereof, and such designees (or replacements
designated by Commodore) shall continue to be members of such Board of Directors
on each subsequent date that Shares are purchased pursuant to this Agreement.
7.14 PROCEEDINGS AND INSTRUMENTS SATISFACTORY. All proceedings,
corporate or other, to be taken in connection with the transactions contemplated
by this Agreement, and all documents incidental thereto, shall be reasonably
satisfactory in form and substance to Commodore and its counsel. Lanxide shall
have submitted to Commodore or its representatives for examination the originals
or true and correct copies of all records and documents relating to the business
and affairs of Lanxide which Commodore may have requested in connection with
said transactions.
8. CONDITIONS PRECEDENT TO LANXIDE'S PERFORMANCE.
_____________________________________________
In addition to the fulfillment of the parties' agreements in Section 6
above, the obligations of Lanxide to consummate the transactions contemplated by
this Agreement are further subject to the satisfaction, at or before the Closing
Date, of all the following conditions, any one or more of which may be waived in
writing by Lanxide:
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by Commodore in this Agreement shall be true and correct in
all material respects on and as of the Closing Date as though such
representations and warranties were made on and as of that date.
8.2 PERFORMANCE. Commodore shall have performed, satisfied and
complied with all covenants, agreements, and conditions required by this
Agreement to be performed, satisfied or complied with by Commodore on or before
the Closing Date, including without limitation, payment of the Purchase Price
for the Shares and Warrants delivered to Commodore on the Closing Date in
accordance with the provisions of 2.2 hereof.
8.3 CERTIFICATION. Lanxide shall have received a certificate, dated
the Closing Date, signed by Commodore, certifying, in such detail as Lanxide and
its counsel may reasonably request, that the conditions specified in Sections
8.1 and 8.2 above have been fulfilled.
8.4 FAIRNESS OPINION. Lanxide shall have received the Lanxide
Fairness Opinion, and same shall not have been withdrawn or modified in any
respect not satisfactory to Lanxide.
9. CLOSING.
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9.1 PLACE AND DATE OF CLOSING. Unless this Agreement shall be
terminated pursuant to Section 10 below, the consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Greenberg Traurig Hoffman Lipoff Rosen & Quentel, counsel to Commodore,
located at 153 East 53rd Street, 35th floor, New York, New York 10022, or such
other location as is agreed to between Commodore and Lanxide, at 10:00 a.m.
local time on a date on or before July 3, 1997 to be mutually agreed to by the
parties (the date of the Closing being referred to in this Agreement as the
"Closing Date").
9.2 ACTIONS AT CLOSING. At the Closing, Commodore and Lanxide shall
make all payments and deliveries stated in this Agreement to be made at the
Closing and/or on or prior to the Closing Date.
10. TERMINATION OF AGREEMENT.
10.1 GENERAL. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned:
(a) at any time prior to the Closing Date, by the mutual written
consent of Lanxide and Commodore;
(b) at any time prior to the Closing Date, by Commodore, or by
Lanxide, if: (i) a material breach shall exist with respect to the
written representations and warranties made by the other party,
(ii) the other party shall take any action prohibited by this
Agreement, if such action shall or may have a material adverse effect
on Lanxide and/or the transactions contemplated hereby, or (iii) any
consent of any third party to the transactions contemplated hereby
(whether or not the necessity of which is disclosed herein) is
reasonably necessary to prevent a default under any outstanding
material obligation of Commodore or Lanxide, and such consent is not
obtainable without material cost or penalty (unless the party or
parties not seeking to terminate this Agreement agrees or agree to pay
such cost or penalty);
(c) subject to compliance with Section 10.3 below, by Lanxide, if it
receives a Superior Offer at any time prior to Commodore's purchase
and payment for all 105,000 Shares offered pursuant to this Agreement;
or
(d) by Commodore, or by Lanxide, at any time on or after 5:00 p.m.
(New York time) on July 3, 1997 (the "Outside Closing Date"), if the
transactions contemplated hereby shall not have been consummated prior
thereto, and the party directing termination shall not then be in
breach or default of any obligations imposed upon such party by this
Agreement.
10.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement pursuant to this Section 10, no party to this Agreement shall have any
further liability to the other, except as provided in Sections 10.3, 11.2 and
12.2 below, and except for willful breaches of this Agreement. In the event of
termination by either party as above provided in this Section 10, prompt written
notice shall be given to the other party.
10.3 PAYMENTS TO COMMODORE. In the event that Lanxide shall
terminate this Agreement as a result of receipt of a Superior Offer,
simultaneous with the consummation of any transaction contemplated pursuant to
such Superior Offer, Lanxide shall pay to Commodore in immediately available
funds an aggregate amount equal to the SUM of:
(a) the greater of (i) $300,000, or (ii) Commodore's actual out-
of-pocket costs and expenses incurred in connection with the
negotiation and financing of this Agreement; and
(b) the SUM of (i) the full Purchase Price paid by Commodore
for all Shares previously purchased by Commodore from Lanxide through
the date of termination of this Agreement, and (ii) an additional
payment equal to the Purchase Price actually paid multipled by a rate
per annum of 8%, calculated from the date each installment of such
Purchase Price was paid by Commodore to the date of repayment, against
delivery by Commodore to Lanxide of certificates evidencing such
Shares accompanied by stock powers duly executed in blank; PROVIDED,
that Commodore may, in lieu of the payments contemplated by this
Section 10.3(b), prior to consummation of the transactions
contemplated by such Superior Offer, elect (in the exercise of its
sole and absolute discretion) to exercise the Warrant in part by
exchanging such Shares for a like number of Warrant Shares of Series F
Preferred Stock and simultaneously converting such Warrant Shares into
the applicable number of shares of Lanxide Common Stock; and
(c) if and to the extent applicable, the full amount of any
additional funds advanced by Commodore (in its sole and absolute
discretion) from and after the Closing Date to Lanxide, together with
interest thereon from the date of funding to the date of repayment at
the rate of 8% per annum.
Nothing contained in this Section 10.3 shall obligate Lanxide to prepay any
of the Commodore Indebtedness, all of which shall remain due and payable in
accordance with their stated terms.
11. REGISTRATION RIGHTS.
___________________
11.1 If at any time following Commodore's completion of its purchase
and payment for 105,000 of the Shares, Lanxide shall file a registration
statement (other than a registration statement on Form S-4, Form S-8, or any
successor form) with the SEC while any Registrable Securities (as hereinafter
defined) are outstanding, Lanxide shall give all the then holders of any
Registrable Securities or securities which are convertible into or exercisable
for Registerable Securities, including for this purpose, holders of the Shares
(the "Eligible Holders") at least 30 days prior written notice of the filing of
such registration statement. If requested by any Eligible Holder in writing
within 15 days after receipt of any such notice, Lanxide shall, at Lanxide's
sole expense (other than the fees and disbursements of counsel for the Eligible
Holders and the underwriting discounts or commissions, if any, payable in
respect of the Registrable Securities sold by any Eligible Holder), register or
qualify all or, at each Eligible Holder's option, any portion of the Registrable
Securities of any Eligible Holders who shall have made such request,
concurrently with the registration of such other securities, all to the extent
requisite to permit the public offering and sale of the Registrable Securities
through the facilities of all appropriate securities exchanges and the
over-the-counter market, and will use its best efforts through its officers,
directors, auditors, and counsel to cause such registration statement to become
effective as promptly as practicable. Notwithstanding the foregoing, if the
managing underwriter of any such offering shall advise Lanxide in writing that,
in its opinion, the distribution of all or a portion of the Registrable
Securities requested to be included in the registration concurrently with the
securities being registered by Lanxide would adversely affect the distribution
of such securities by Lanxide for its own account, then the underwriters shall
have the right to exclude any or all of the securities that the Eligible Holders
or other prospective seller requested to be including in such public offering;
provided, however, that such exclusion shall be made pro rata among the Eligible
Holders and the other stockholders of Lanxide that have registration rights or
have otherwise requested to participate on a piggyback basis in such public
offering in proportion to the respective number of shares of securities which
were requested to be included in such public offering. As used herein,
"Registrable Securities" shall mean the shares of Lanxide Common Stock issuable
upon conversion of Warrant Shares acquired by the Eligible Holder upon full or
partial exercise of the Warrant, which have not been previously sold pursuant to
a registration statement or Rule 144 promulgated under the 1993 Act.
11.2 If at any time following Commodore's completion of its purchase
and payment for 105,000 of the Shares, Lanxide shall receive a written request,
from Eligible Holders who in the aggregate own (or upon exercise of all Warrants
then outstanding or issuable would own) 50% of the total number of shares of
Series F Preferred Stock then included (or upon such exercises would be
included) in the Registrable Securities (the "Majority Holders"), to register
the sale of all or part of such Registrable Securities, Lanxide shall, as soon
as reasonably practicable, but in any event within 180 days of Lanxide's receipt
of a written request from the Eligible Holders, prepare and file with the SEC a
registration statement sufficient to permit the public offering and sale of the
Registrable Securities through the facilities of all appropriate securities
exchanges and the over-the-counter market, and will use its best efforts through
its officers, directors, auditors, and counsel to cause such registration
statement to become effective within such 180 day time period; PROVIDED,
HOWEVER, that Lanxide shall only be obligated to file one such registration
statement for which all expenses incurred in connection with such registration
(other than the fees and disbursements of counsel for the Eligible Holders and
underwriting discounts, if any, payable in respect of the Registrable Securities
sold by the Eligible Holders) shall be borne by Lanxide. Lanxide shall not be
obligated to effect any registration of its securities pursuant to this Section
11.2 within six months after the effective date of a previous registration
statement prepared and filed in accordance with Sections 11.1 or 11.2. Within
seven business days after receiving any request contemplated by this Section
11.2, Lanxide shall give written notice to all the other Eligible Holders,
advising each of them that Lanxide is proceeding with such registration and
offering to include therein all or any portion of any such other Eligible
Holder's Registrable Securities, provided that Lanxide receives a written
request to do so from such Eligible Holder within 15 days after receipt by him
or it of Lanxide's notice.
11.3 In the event of a registration pursuant to the provisions of
this Section 11, Lanxide shall use its best efforts to cause the Registrable
Securities so registered to be registered or qualified for sale under the
securities or blue sky laws of such jurisdictions as the Eligible Holder or such
holders may reasonably request; PROVIDED, HOWEVER, that Lanxide shall not be
required to qualify to do business in any state by reason of this Section 11.3
in which it is not otherwise required to qualify to do business.
11.4 Lanxide shall keep effective any registration or qualification
contemplated by this Section 11 and shall from time to time amend or supplement
each applicable registration statement, preliminary prospectus, final
prospectus, application, document, and communication for such period of time as
shall be required to permit the Eligible Holders to complete the offer and sale
of the Registrable Securities covered thereby. Lanxide shall in no event be
required to keep any such registration or qualification in effect for a period
in excess of nine months from the date on which the Eligible Holders are first
free to sell such Registrable Securities; PROVIDED, HOWEVER, that, if Lanxide is
required to keep any such registration or qualification in effect with respect
to securities other than the Registrable Securities beyond such period, Lanxide
shall keep such registration or qualification in effect as it relates to the
Registrable Securities for so long as such registration or qualification remains
or is required to remain in effect in respect of such other securities.
11.5 In the event of a registration pursuant to the provisions of
this Section 11, Lanxide shall furnish to each Eligible Holder such number of
copies of the registration statement and of each amendment and supplement
thereto (in each case, including all exhibits), such reasonable number of copies
of each prospectus contained in such registration statement and each supplement
or amendment thereto (including each preliminary prospectus), all of which shall
conform to the requirements of the 1933 Act and the rules and regulations
thereunder, and such other documents, as any Eligible Holder may reasonably
request to facilitate the disposition of the Registrable Securities included in
such registration.
11.6 In the event of a registration pursuant to the provisions of
this Section 11, Lanxide shall furnish each Eligible Holder of any Registrable
Securities so registered with an opinion of its counsel (reasonably acceptable
to the Eligible Holders) to the general effect that (i) the registration
statement has become effective under the 1933 Act and no order suspending the
effectiveness of the registration statement, preventing or suspending the use of
the registration statement, any preliminary prospectus, any final prospectus, or
any amendment or supplement thereto has been issued, nor has the SEC or any
securities or blue sky authority of any jurisdiction instituted or threatened to
institute any proceedings with respect to such an order, (ii) the registration
statement and each prospectus forming a part thereof (including each preliminary
prospectus), and any amendment or supplement thereto, complies as to form with
the 1933 Act and the rules and regulations thereunder, and (iii) such counsel
has no knowledge of any material misstatement or omission in such registration
statement or any prospectus, as amended or supplemented.
11.7 In the event of a registration pursuant to the provision of this
Section 11, Lanxide shall enter into a cross-indemnity agreement and a
contribution agreement, each in customary form, with each underwriter, if any,
and, if requested, enter into an underwriting agreement containing conventional
representations, warranties, allocation of expenses, and customary closing
conditions, including, but not limited to, opinions of counsel and accountants'
cold comfort letters, with any underwriter who acquires any Registrable
Securities.
11.8 In the event of a registration pursuant to the provisions of
this Section 11:
(a) each Eligible Holder shall furnish to Lanxide in writing
such appropriate information (relating to such Eligible Holder and the intention
of such Eligible Holder as to proposed methods of sale or other disposition of
their Shares) and the identity of and compensation to be paid to any proposed
underwriters to be employed in connection therewith as Lanxide, any underwriter,
or the SEC or any other regulatory authority may request;
(b) the Eligible Holders shall enter into the usual and
customary form of underwriting agreement agreed to by Lanxide and any
underwriter with respect to any such offering, if required, and such
underwriting agreement shall contain the customary rights of indemnity between
Lanxide, the underwriters, and such Eligible Holders;
(c) each Eligible Holder shall agree that he shall execute,
deliver and/or file with or supply Lanxide, any underwriters, the SEC and/or any
state or other regulatory authority such information, documents,
representations, undertakings and/or agreements necessary to carry out the
provisions of the registration covenants contained in this Section 11 and/or to
effect the registration or qualification of his or its Registrable Securities
under the 1933 Act and/or any of the laws and regulations of any state or
governmental instrumentality;
(d) Lanxide's obligation to include any Registrable Securities
in a registration statement shall be subject to the written agreement of each
holder thereof to offer such securities in the same manner and on the same terms
and conditions as the other securities of the same class are being offered
pursuant to the registration statement, if such shares are being underwritten;
(e) in the event that all the Registrable Securities have not
been sold on or prior to the expiration of the period specified in Section 11.4
above, Lanxide may de-register by post-effective amendment any Registrable
Securities covered by the registration statement, but not sold on or prior to
such date. Lanxide agrees that it will notify each holder of Registrable
Securities of the filing and effective date of such post-effective amendment;
and
(f) each Eligible Holder agrees that upon notification by
Lanxide that the prospectus in respect to any public offering covered by the
provisions hereof is in need of revision, such Eligible Holder shall immediately
upon receipt of such notification (i) cease to offer or sell any securities of
Lanxide which must be accompanied by such prospectus, (ii) return all such
prospectuses in such Eligible Holder's hands to Lanxide, and (iii) not offer or
sell any securities of Lanxide until such Holder has been provided with a
current prospectus and Lanxide has given such Eligible Holder notification
permitting such Eligible Holder to resume offers and sales.
11.9 Lanxide agrees that until all the Registrable Securities have
been sold under a registration statement or pursuant to Rule 144 under the 1933
Act, it shall keep current in filing all reports, statements and other materials
required to be filed with the SEC to permit holders of the Registrable
Securities to sell such securities under Rule 144.
11.10 Except for (i) rights granted to holders of the Warrants, and
(ii) rights granted by Lanxide to other security holders of Lanxide prior to the
date hereof, Lanxide will not, without the written consent of the Majority
Holders, grant to any persons the right to request Lanxide to register any
securities of Lanxide, provided that Lanxide may grant such registration rights
to other persons so long as such rights are subordinate or pari passu to the
rights of the Eligible Holders.
12. INDEMNIFICATION
_______________
12.1 Subject to the conditions set forth below, Lanxide agrees to
indemnify and hold harmless each Eligible Holder, its officers, directors,
partners, employees, agents and counsel, and each person, if any, who controls
any such person within the meaning of Section 15 of the 1933 Act or Section
20(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), from
and against any and all loss, liability, charge, claim, damage, and expense
whatsoever (which shall include, for all purposes of this Section 12, but not be
limited to, reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), as and when incurred,
arising out of, based upon, or in connection with: (i) any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement, preliminary prospectus, or final prospectus (as from time to time
amended and supplemented), or any amendment or supplement thereto, relating to
the sale of any of the Registrable Securities; or (ii) any omission or alleged
omission to state a material fact required to be stated in any document
referenced in clause (i) above or necessary to make the statements therein not
misleading, unless such statement or omission was made in reliance upon and in
conformity with written information furnished to Lanxide with respect to such
Eligible Holder by or on behalf of such person expressly for inclusion in any
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be. The
foregoing agreement to indemnify shall be in addition to any liability Lanxide
may otherwise have.
If any action is brought against any Eligible Holder or any of its
officers, directors, partners, employees, agents, or counsel, or any controlling
persons of such person (an "indemnified party") in respect of which indemnity
may be sought against Lanxide pursuant to the foregoing paragraph, such
indemnified party or parties shall promptly notify Lanxide in writing of the
institution of such action (but the failure so to notify shall not relieve
Lanxide from any liability other than pursuant to this Section 12.1, except to
the extent it may have been prejudiced in any material respect by such failure)
and Lanxide shall promptly assume the defense of such action, including the
employment of counsel (reasonably satisfactory to such indemnified party or
parties) and payment of expenses. Such indemnified party or parties shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in
writing by Lanxide in connection with the defense of such action or Lanxide
shall not have promptly employed counsel reasonably satisfactory to such
indemnified party or parties to have charge of the defense of such action or
such indemnified party or parties shall have reasonably concluded that there may
be one or more legal defenses available to it or them or to other indemnified
parties which are different from or additional to those available to Lanxide, in
any of which events such fees and expenses shall be borne by Lanxide and Lanxide
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties. Anything in this Section 12 to the contrary
notwithstanding, Lanxide shall not be liable for any settlement of any such
claim or action effected without its written consent, which shall not be
unreasonably withheld. Lanxide shall not, without the prior written consent of
each indemnified party that is not released as described in this sentence,
settle or compromise any action, or permit a default or consent to the entry of
judgment in or otherwise seek to terminate any pending or threatened action, in
respect of which indemnity may be sought hereunder (whether or not any
indemnified party is a party thereto), unless such settlement, compromise,
consent, or termination includes an unconditional release of each indemnified
party from all liability in respect of such action. Lanxide agrees promptly to
notify the Eligible Holders of the commencement of any litigation or proceedings
against Lanxide or any of its officers or directors in connection with the sale
of any Registrable Securities or any preliminary prospectus, prospectus,
registration statement, or amendment or supplement thereto, or any application
relating to any sale of any Registrable Securities.
12.2 Each Eligible Holder agrees to indemnify and hold harmless
Lanxide, each director of Lanxide, each officer of Lanxide who shall have signed
any registration statement covering Registrable Securities held by the Eligible
Holder, each other person, if any, who controls Lanxide within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, and its or their
respective counsel, to the same extent as the foregoing indemnity from Lanxide
to the Eligible Holder in Section 12.1 above, but only with respect to
statements or omissions, if any, made in any registration statement, preliminary
prospectus, or final prospectus (as from time to time amended and supplemented),
or any amendment or supplement thereto, or in any application, in reliance upon
and in conformity with written information furnished to Lanxide with respect to
the Eligible Holder by or on behalf of the Eligible Holder expressly for
inclusion in any such registration statement, preliminary prospectus, or final
prospectus, or any amendment or supplement thereto, or in any application, as
the case may be. If any action shall be brought against Lanxide or any other
person so indemnified based on any such registration statement, preliminary
prospectus, or final prospectus, or any amendment or supplement thereto, or in
any application, and in respect of which indemnity may be sought against the
Eligible Holder pursuant to this Section 12.2, the Eligible Holder shall have
the rights and duties given to Lanxide, and Lanxide and each other person so
indemnified shall have the rights and duties given to the indemnified parties,
by the provisions of Section 12.1.
12.3 To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section 12.1 or
Section 12.2 (subject to the limitations thereof) but it is found in a final
judicial determination, not subject to further appeal, that such indemnification
may not be enforced in such case, even though this Agreement expressly provides
for indemnification in such case, or (ii) any indemnified or indemnifying party
seeks contribution under the 1933 Act, the 1934 Act or otherwise, then Lanxide
(including for this purpose any contribution made by or on behalf of any
director of Lanxide, any officer of Lanxide who signed any such registration
statement, any controlling person of Lanxide, and its or their respective
counsel), as one entity, and the Eligible Holders of the Registrable Securities
included in such registration in the aggregate (including for this purpose any
contribution by or on behalf of an indemnified party), as a second entity, shall
contribute to the losses, liabilities, claims, damages, and expenses whatsoever
to which any of them may be subject, on the basis of relevant equitable
considerations such as the relative fault of Lanxide and such Eligible Holders
in connection with the facts which resulted in such losses, liabilities, claims,
damages, and expenses. The relative fault, in the case of an untrue statement,
alleged untrue statement, omission, or alleged omission, shall be determined by,
among other things, whether such statement, alleged statement, omission, or
alleged omission relates to information supplied by Lanxide or by such Eligible
Holders, and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement, alleged statement, omission,
or alleged omission. Lanxide and the Holder agree that it would be unjust and
inequitable if the respective obligations of Lanxide and the Eligible Holders
for contribution were determined by pro rata or per capita allocation of the
aggregate losses, liabilities, claims, damages, and expenses (even if the Holder
and the other indemnified parties were treated as one entity for such purpose)
or by any other method of allocation that does not reflect the equitable
considerations referred to in this Section 12.3. In no case shall any Eligible
Holder be responsible for a portion of the contribution obligation imposed on
all Eligible Holders in excess of its pro rata share based on the number of
shares of Series F Preferred Stock owned (or which would be owned upon exercise
of the Registrable Securities) by it and included in such registration as
compared to the number of shares of Series F Preferred Stock owned (or which
would be owned upon conversion of the Shares or exercise of the Warrant and
conversion of the Warrant Shares of the Registrable Securities) by all Eligible
Holders and included in such registration. No person guilty of a fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. For purposes of this Section 12.3, each person, if any, who
controls any Eligible Holder within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act and each officer, director, partner, employee,
agent, and counsel of each such Eligible Holder or control person shall have the
same rights to contribution as such Eligible Holder or control person and each
person, if any, who controls Lanxide within the meaning of Section 15 of the
1933 Act or Section 20(a) of the 1934 Act, each officer of Lanxide who shall
have signed any such registration statement, each director of Lanxide, and its
or their respective counsel shall have the same rights to contribution as
Lanxide, subject in each case to the provisions of this Section 12.3. Anything
in this Section 12.3 to the contrary notwithstanding, no party shall be liable
for contribution with respect to the settlement of any claim or action effected
without its written consent. This Section 12.3 is intended to supersede any
right to contribution under the 1933 Act, the 1934 Act or otherwise.
13. COSTS.
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13.1 FINDER'S OR BROKER'S FEES. Each of Commodore and Lanxide
represents and warrants that neither they nor any of their respective Affiliates
have dealt with any broker or finder in connection with any of the transactions
contemplated by this Agreement, and no broker or other person is entitled to any
commission or finder's fee in connection with any of these transactions (except,
in the case of Commodore, for fees payable to Schroder Wertheim & Co.
Incorporated, and in the case of Lanxide, for fees payable to PMG).
13.2 EXPENSES. Each party shall bear its own costs and expenses
(including reasonable attorneys' fees) incurred in connection with the
preparation and negotiation of this Agreement and the other agreements referred
to herein, regardless of whether the transactions contemplated hereby shall be
consummated.
14. MISCELLANEOUS
_____________
14.1 SURVIVAL. The representations and warranties made herein and in
the certificates delivered pursuant hereto, shall survive the Closing and shall
continue in full force and effect for so long as any of the Shares are
outstanding. Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and permitted
assigns of such party; and all covenants, promises and agreements in this
Agreement contained, by or on behalf of the Lanxide Companies, shall inure to
the benefit of the successors and assigns of Commodore.
14.2 GOVERNING LAW. This Agreement shall (irrespective of where same
is executed and delivered) be governed by and construed in accordance with the
laws of the State of New York (without giving effect to principles of conflicts
of laws).
14.3 WAIVER AND AMENDMENT. Neither any modification or waiver of any
provision of this Agreement, nor any consent to any departure by the Lanxide
Companies therefrom, shall in any event be effective unless the same shall be
set forth in writing duly signed or acknowledged by the party to be charged
therewith, and then such waiver or consent shall be effective only in the
specific instance, and for the specific purpose, for which given. No notice to
or demand on the Lanxide Companies in any instance shall entitle the Lanxide
Companies to any other or future notice or demand in the same, similar or other
circumstances.
14.4 RESERVATION OF REMEDIES. Neither any failure nor any delay on
the part of Commodore in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or future exercise, or the exercise of any other
right, power or privilege.
14.5 NOTICES. All notices, requests, demands and other
communications under or in respect of this Agreement or any transactions
hereunder shall be in writing (which may include telegraphic or telecopied
communication) and shall be personally delivered, sent by overnight courier,
mailed (registered or certified mail, return receipt requested), telegraphed or
telecopied by facsimile transmission to the applicable party at its address or
telecopier number indicated below.
If to Commodore: Commodore Environmental Services, Inc.
150 East 58th Street, Suite 3410
New York, New York 10155
Attn: Mr. Michael D. Fullwood,
Senior Vice President and General Counsel
Chief Financial and Administrative Officer
Telecopier No. (212) 753-0731
with copies to: Counsel to Commodore:
Greenberg, Traurig, Hoffman, Rosen, Lipoff & Quentel
153 East 53rd Street, 35th Floor
New York, New York 10022
Attn: Stephen A. Weiss, Esq.
Telecopier No. (212) 223-7161
Counsel to the Commodore Special Committee:
Patterson, Belknap, Webb & Tyler, LLP
1133 Avenue of the Americas
New York, New York 10036
Attn: John P. Schmitt, Esq.
If to the Lanxide Companies:
Lanxide Corporation
1300 Marrows Road
Newark, Delaware 19714-6077
Attn: Mr. Marc Newkirk, President
Telecopier No. (302) 454-1714
with a copy to: Skadden, Arps, Slate Maegher & Flom, LLP
One Rodney Square
Wilmington, Delaware 19801
Attn: Robert B. Pincus, Esq.
Telecopier: (302) 651-3001
or, as to each party, at such other address or telecopier number as shall be
designated by such party in a written notice to the other parties delivered as
aforesaid. All such notices, requests, demands and other communications shall
be deemed given when personally delivered or when deposited in the mails with
postage prepaid (by registered or certified mail, return receipt requested) or
delivered to the telegraph company, addressed as aforesaid or when submitted by
facsimile transmission to a telecopier number designated by such addressee. No
other method of written notice is precluded.
14.6 BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of Lanxide and Commodore and their respective successors and
assigns, except that Lanxide shall not have the right to assign any of its
rights or obligations hereunder without the prior written consent of Commodore.
14.7 CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. Lanxide hereby
consents to the jurisdiction of all courts of the State of New York and the
United States District Court for the Southern District of New York, as well as
to the jurisdiction of all courts from which an appeal may be taken from such
courts, for the purpose of any suit, action or other proceeding arising out of
or with respect to this Agreement, any other agreements, instruments,
certificates or other documents executed in connection herewith or therewith, or
any of the transactions contemplated hereby or thereby, or any of Lanxide's
obligations hereunder or thereunder. Lanxide hereby expressly waives any and
all objections it may have as to venue in any of such courts, and also waives
trial by jury in any such suit, action or proceeding.
14.8 SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable, either in its entirety or by virtue of its scope or
application to given circumstances, such provision shall thereupon be deemed
modified only to the extent necessary to render same valid, or not applicable to
given circumstances, or excised from this Agreement, as the situation may
require, and this Agreement shall be construed and enforced as if such provision
had been included herein as so modified in scope or application, or had not been
included herein, as the case may be.
14.9 CAPTIONS. The Article and Section headings in this Agreement
are included herein for convenience of reference only, and shall not affect the
construction or interpretation of any provision of this Agreement.
14.10 SOLE AND ENTIRE AGREEMENT. This Agreement and the other
agreements, instruments, certificates and documents referred to or described
herein and therein constitute the sole and entire agreement and understanding
between the parties hereto as to the subject matter hereof, and supersede all
prior discussions, agreements and understandings of every kind and nature
between the parties as to such subject matter.
[balance of page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed this Agreement on and as of
the date first set forth above.
LANXIDE CORPORATION
By: /s/ Marc S. Newkirk
_________________________________
Marc S. Newkirk, President
COMMODORE ENVIRONMENTAL SERVICES, INC.
By: /s/ Paul E. Hannesson
_________________________________
Paul E. Hannesson, President
SOLELY WITH RESPECT TO THE PROVISIONS OF
SECTION 6.3(B) OF THE FOREGOING AGREEMENT:
/s/ Bentley J. Blum
____________________________________
BENTLEY J. BLUM
/s/ Paul E. Hannesson
____________________________________
PAUL E. HANNESSON
LANXIDE DISCLOSURE SCHEDULE
___________________________
SECTION 3.2(A)
1. Stock options granted to former stock option holders of Lanxide Sports
International.
Old Common Stock
________________
Options Authorized Options Outstanding
__________________ __________________
32,816 32,816
Upon exercise, the stock options would be equitably adjusted by dividing
the shares by 20 (1,646 shares of new preferred stock rounded up) and
multiplying the strike price ($16.00) by 20 ($320.00 per share). The
preferred stock would be convertible into 612 shares of new common stock.
2. Lanxide Armor Products, Inc. employee stock option plan payable in Lanxide
Corporation common stock.
Options Authorized Options Outstanding
__________________ __________________
22,760 21,471
3. Lanxide Electronic Components, Inc. employee stock option plan payable in
LEC common stock.
Options Authorized Options Outstanding
__________________ __________________
10,000 6,965
4. Lanxide Corporation stock option plan for the benefit of the employees of
Lanxide ThermoComposites, Inc. payable in LTI common stock.
Options Authorized Options Outstanding
__________________ __________________
360 195
5. 1991 Director Stock Plan (former directors only).
Old Common Stock
________________
Options Authorized Options Outstanding
__________________ __________________
41,185 41,185
Upon exercise, the stock options would be equitably adjusted by dividing
the shares by 20 (2,061) shares of new preferred stock rounded up) and
multiplying the various strike prices by 20 ($100.00 - $160.00 per share).
The preferred stock would be convertible into 766 shares of new common
stock.
SECTION 3.2(B)
1. Lanxide Electronic Components, Inc. employee stock option plan payable in
LEC common stock:
Options Authorized Options Outstanding
__________________ __________________
10,000 6,965
2. Lanxide Corporation stock option plan for the benefit of the employees of
Lanxide ThermoComposites, Inc. payable in LTI common stock:
Options Authorized Options Outstanding
__________________ __________________
360 195
3. Section 3.3 of the Lanxide Disclosure Schedules is incorporated herein by
reference.
SECTION 3.3
(a) Lanxide Subsidiaries
____________________
Lanxide Technology Company, L.P. ("LTC")
LTC Capital, Inc.
Lanxide Development Company, L.P.
Alanx Products, L.P.
Lanxide Wear Products, Inc.
Lanxide Armor Products, Inc. ("LAP")
Lanxide Technical Services Corporation
Lanxide Performance Materials, Inc.
Lanxide Electronic Components, Inc. ("LEC")
Lanxide K.K. (65%)
(b) Subsidiary stock option plans - see Section 3.2(a) of this Lanxide
Disclosure Schedule.
(c) Subsidiary capital stock pledged as collateral.
1. Lanxide K.K. - Lanxide's 65% ownership is pledged as collateral
to Kanematsu Corporation in consideration of its $10.0 million
line of credit to Lanxide Corporation.
2. The capital stock of LAP and LEC or, alternatively, LAP and the
Company's remaining 10% ownership in DuPont Lanxide Composites,
Inc. is pledged as collateral to DuPont in consideration of its
guarantee of a $6.0 million line of credit provided to the
Company by PNC Bank, Delaware.
SECTION 3.5
(a) The consent of LAX (DE) QRS 12-16, Inc. is required under the Lease
Agreement, dated as of March 28, 1996, by and between LAX (DE) QRS 12-16,
Inc., as landlord, and Lanxide, as tenant.
SECTION 3.8
Lanxide Joint Ventures
______________________
(a) DuPont Lanxide Composites, Inc. - owned 90% by DuPont and 10% by Lanxide.
(b) Alanx Wear Solutions - owned 90% by Alanx Corporation and 10% by Lanxide
Wear Products, Inc., a wholly-owned subsidiary of Lanxide Corporation.
(c) Lanxide ThermoComposites - owned 51% by A.P. Green Industries, 29% by
Lanxide and 20% by minority shareholders.
(d) Lanxide K.K. - owned 65% by Lanxide and 35% by Kanematsu Corporation.
(e) Further details on each of the above joint ventures may be found in various
filings with the Securities and Exchange Commission including:
1. S-4 Registration Statement filed June 30, 1995 and Amendments No. 1
through No. 5
2. Form 10KSB for the period ending 9-30-95
3. Form 10QSB for the period ending 12-31-95
4. Form 10QSB for the period ending 3-31-96
5. Form 10QSB for the period ending 6-30-96
6. Form 10KSB for the period ending 9-30-96
7. Form 10QSB for the period ending 12-31-96
8. Form 10QSB for the period ending 3-31-97
SECTION 3.11
Employee Benefit Plans
______________________
Attached as Exhibit A hereto are copies of:
1. Lanxide Benefits - an overview, and
2. Lanxide Corporation Deferred Compensation Plan (unfunded).
Details on each benefit plan may be provided upon request.
SECTION 3.16
Lanxide has incurred an additional $600,000 of current indebtednes since
March 31, 1997.
SECTION 5.1(D)
Lanxide and its Lanxide Subsidiaries shall be able to sell any accounts
receivable prior to the Closing.
SECTION 3.18
Labor Matters
_____________
1. In April 1994, Lanxide Armor Products, Inc., a wholly-owned subsidiary of
Lanxide Corporation, received notice from the Equal Employment Opportunity
Commission that a charge of employment discrimination has been filed
against LAP under "The Age Discrimination In Employment Act of 1967."
The action was initiated by a LAP engineer whose services were terminated
as part of a reduction-in-force in May 1993.
The case is still active. We have complied with all requests for
information from the EEOC.
2. Lanxide Technical Services, Inc., a wholly owned subsidiary of Lanxide,
provides employment agency services to DuPont Corporation and DuPont
Lanxide Composites, Inc.
EXHIBIT A-1
___________
CERTIFICATE OF STOCK DESIGNATION
OF
LANXIDE CORPORATION
It is hereby certified that:
a. The name of the corporation (hereinafter called the "Corporation")
is LANXIDE CORPORATION.
b. The certificate of incorporation of the Corporation authorizes the
issuance of 15,000,000 shares of preferred stock of the Corporation having a par
value of $.01 per share (the "Preferred Stock"), and expressly vests in the
Board of Directors of the Corporation the authority provided therein to fix by
resolution or resolutions the designation, number, preferences and relative,
participating, optional and other special rights and the qualifications,
limitations, restrictions and other distinguishing characteristics of each
series of Preferred Stock to be issued.
c. The Board of Directors of the Corporation, pursuant to the authority
expressly vested in it as aforesaid, has adopted the following resolutions
creating a Series F issue of the Preferred Stock of the Corporation as follows:
RESOLVED: That there shall be created a series of the Preferred Stock
of the Corporation, to be designated as "Series F" of such Preferred
Stock and to consist of 250,000 shares of such Preferred Stock (each a
"Share" and collectively the "Shares"), which will have relative
rights, preferences and limitations as follows:
Series F Preferred Stock
________________________
SECTION 1. DIVIDENDS. The Series F Preferred Stock will not entitle the
Holders thereof to receive any dividends in respect of such Series F Preferred
Stock; PROVIDED, HOWEVER, that this Section 1 shall not prohibit or impair
payments to the Holders of the Series F Preferred Stock upon liquidation,
dissolution or winding up of the Corporation in accordance with Section 2 below.
SECTION 2. LIQUIDATION. Upon any liquidation, dissolution or winding up
of the Corporation, each Holder of Series F Preferred Stock will be entitled to
be paid, out of the net assets of the Corporation available for distribution to
stockholders of the Corporation, and before any distribution or payment is made
upon any Junior Securities, an amount in cash equal to the aggregate Liquidation
Value of all Shares held by such Holder, and the Holders of Series F Preferred
Stock will not be entitled to any further payment. If upon any such
liquidation, dissolution or winding up of the Corporation, the Corporation's
assets to be distributed among the Holders of the Series F Preferred Stock and
the holders of all outstanding shares of any other series or class of preferred
stock that are not Junior Securities and which rank on a parity as to
liquidation with the Series F Preferred Stock are insufficient to permit payment
to such Holders and the holders of such other preferred stock of the aggregate
amounts which they are entitled to be paid, then the entire assets to be
distributed will be distributed ratably among such Holders and other holders
based upon the aggregate Liquidation Value of the Series F Preferred Stock and
such other preferred stock held by each such Holder and other holders. The
Corporation will mail written notice of such liquidation, dissolution or winding
up, not less than thirty (30) days prior to the payment date stated therein, to
each record Holder of Series F Preferred Stock. Neither the consolidation or
merger of the Corporation into or with any other entity or entities, nor the
sale or transfer by the Corporation of all or any part of its assets, nor the
reduction of the capital stock of the Corporation, will be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of
this Section 2.
SECTION 3. PRIORITY OF SERIES F PREFERRED STOCK. The Series F Preferred
Stock shall rank junior to the Corporation's issued and outstanding Series A
Preferred Stock, shall rank on a parity with the Corporation's Series G
Preferred Stock, and shall rank senior to the Corporation's Series E Preferred
Stock. So long as any of the Series F Preferred Stock remains outstanding,
neither the Corporation nor any Subsidiary will:
3.1 redeem, purchase or otherwise acquire directly or indirectly any
securities ranking on a parity with the Series F Preferred Stock, UNLESS
the Corporation shall first offer to the Holder(s) of the Series F
Preferred Stock, pursuant to written notice given not more than sixty (60)
and not less than (30) days prior to the date fixed for such redemption,
purchase or acquisition, an opportunity to participate with the holders of
such other parity securities in such redemption, purchase or acquisition on
a ratable basis with such holders of other parity securities, based upon
the aggregate Liquidation Value of the Series F Preferred Stock and such
other parity securities held by each such holder; or
3.2 redeem, purchase or otherwise acquire directly or indirectly any
Junior Securities (other than shares of the Corporation's Series E
Preferred Stock or Series G Preferred Stock pursuant to the terms set forth
in their respective certificates of designation), or directly or indirectly
pay or declare any dividend or make any distribution upon any Junior
Securities, other than dividends payable solely in Junior Securities.
SECTION 4. REDEMPTIONS. Except as otherwise expressly provided in Section
3.1 above, the Series F Preferred Stock shall not be subject to mandatory or
optional redemption by either the Holder or the Corporation.
SECTION 5. CONVERSION INTO COMMON STOCK.
5.1 CONVERSION RIGHTS. Upon the occurrence of any Liquidity Event,
the Holders of outstanding Series F Preferred Stock shall be required to convert
all of their Shares, and the Holders of outstanding Series F Preferred Stock
otherwise may, at their option at any time and from time to time, convert any or
all of their Shares, into shares of Common Stock of the Corporation (the
"Conversion Shares") at a rate per Share of Series F Preferred Stock (the
"Conversion Rate") which shall be equal to thirteen and one-half (13.500)
Conversion Shares for each Share of Series F Preferred Stock, subject to
adjustment as provided in Section 5.2 hereof. The number of Conversion Shares
issuable upon conversion of Shares of Series F Preferred Stock and the
Conversion Rate shall be subject to adjustment, from time to time, in the manner
provided in Section 5.2 of this Certificate.
5.2 ADJUSTMENTS TO CONVERSION RATE AND CONVERSION SHARES.
(a) In case the Corporation shall at any time after the date
the Shares were first issued (i) declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, (ii) subdivide the outstanding
Common Stock, (iii) combine the outstanding Common Stock into a smaller number
of shares, or (iv) issue any shares of its capital stock by reclassification of
the Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Corporation is the continuing corporation),
then, in each case, the Conversion Rate, and the number of Conversion Shares
issuable upon conversion of the Shares, in effect at the time of the record date
for such dividend or of the effective date of such subdivision, combination, or
reclassification, shall be proportionately adjusted so that the Holder after
such time shall be entitled to receive the aggregate number and kind of shares
which, if such Shares of Series F Preferred Stock had been converted immediately
prior to such time, he would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination, or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) In case the Corporation shall issue or fix a record date
for the issuance to all holders of Common Stock of rights, options, or warrants
to subscribe for or purchase Common Stock (or securities convertible into or
exchangeable for Common Stock) at a price per share (or having a conversion or
exchange price per share, if a security convertible into or exchangeable for
Common Stock) less than the number obtained by dividing $100 by the Conversion
Rate per Share of Series F Preferred Stock (such number, the "Conversion Price")
on such record date, then, in each case, the Conversion Price shall be adjusted
(with a corresponding adjustment to the Conversion Rate) by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
on such record date plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock so to be
offered (or the aggregate initial conversion or exchange price of the
convertible or exchangeable securities so to be offered) would purchase at such
current Conversion Price and the denominator of which shall be the number of
shares of Common Stock outstanding on such record date plus the number of
additional shares of Common Stock to be offered for subscription or purchase (or
into which the convertible or exchangeable securities so to be offered are
initially convertible or exchangeable). Such adjustment shall become effective
at the close of business on such record date; PROVIDED, HOWEVER, that, to the
extent the shares of Common Stock (or securities convertible into or
exchangeable for shares of Common Stock) are not delivered, the Conversion Price
and the Conversion Rate shall be readjusted after the expiration of such rights,
options, or warrants, to the Conversion Price and the Conversion Rate which
would then be in effect had the adjustments made upon the issuance of such
rights, options, or warrants been made upon the basis of delivery of only the
number of shares of Common Stock (or securities convertible into or exchangeable
for shares of Common Stock) actually issued. In case any subscription price may
be paid in a consideration part or all of which shall be in a form other than
cash, the value of such consideration shall be as determined in good faith by
the board of directors of the Corporation, whose determination shall be
conclusive absent manifest error. Shares of Common Stock owned by or held for
the account of the Corporation or any majority-owned subsidiary shall not be
deemed outstanding for the purpose of any such computation.
(c) In case the Corporation shall distribute to all holders
of Common Stock (including any such distribution made to the stockholders of the
Corporation in connection with a consolidation or merger in which the
Corporation is the continuing corporation) evidences of its indebtedness or
assets (other than cash dividends or distributions and dividends payable in
shares of Common Stock), or rights, options, or warrants to subscribe for or
purchase Common Stock, or securities convertible into or exchangeable for shares
of Common Stock (excluding those with respect to the issuance of which an
adjustment of the Conversion Price and the Conversion Rate is provided pursuant
to Section 5.2(b) hereof), then, in each case, the Conversion Price shall be
adjusted (with a corresponding adjustment in the Conversion Rate) by multiplying
the Conversion Price in effect immediately prior to the record date for the
determination of stockholders entitled to receive such distribution by a
fraction, the numerator of which shall be the Conversion Price per Conversion
Share of Common Stock on such record date, less the fair market value (as
determined in good faith by the board of directors of the Corporation, whose
determination shall be conclusive absent manifest error) of the portion of the
evidences of indebtedness or assets so to be distributed, or of such rights,
options, or warrants or convertible or exchangeable securities, applicable to
one share, and the denominator of which shall be such current Conversion Price
per Conversion Share of Common Stock. Such adjustment shall be made whenever any
such distribution is made, and shall become effective on the record date for the
determination of shareholders entitled to receive such distribution.
(d) In case the Corporation shall issue shares of Common
Stock or rights, options, or warrants to subscribe for or purchase Common Stock,
or securities convertible into or exchangeable for Common Stock, whether in
connection with a Liquidity Event of the nature described in Section 12.7 of
this Certificate, or otherwise, (EXCLUDING only shares of Common Stock, rights,
options, warrants, or convertible or exchangeable securities issued or issuable
(i) in any of the transactions with respect to which an adjustment of the
Conversion Rate is provided pursuant to Sections 5.2(a), 5.2(b) or 5.2(c) above,
(ii) upon conversion, in whole or in part, of the Series F Preferred Stock,
(iii) to management or employees of the Corporation of authorized shares of
Common Stock, or (iv) pursuant to previously issued and outstanding warrants),
at a price per share of Common Stock (determined, in the case of such rights,
options, warrants, or convertible or exchangeable securities, by dividing
(x) the total amount received or receivable by the Corporation in consideration
of the sale and issuance of such rights, options, warrants, or convertible or
exchangeable securities, plus the minimum aggregate consideration payable to the
Corporation upon exercise, conversion, or exchange thereof, by (y) the maximum
number of shares covered by such rights, options, warrants, or convertible or
exchangeable securities) which shall be LOWER than the Conversion Price in
effect immediately prior to any such issuance, then the Conversion Rate shall be
reduced on the date of such issuance (with a corresponding adjustment to the
Conversion Rate) to a price (calculated to the nearest cent) determined by
multiplying the Conversion Price in effect immediately prior to such issuance by
a fraction, (i) the numerator of which shall be an amount equal to the sum of
(A) the number of shares of Common Stock outstanding immediately prior to such
issuance plus (B) the quotient obtained by dividing the consideration received
by the Corporation upon such issuance by such current Conversion Rate, and
(ii) the denominator of which shall be the total number of shares of Common
Stock outstanding immediately after such issuance. For the purposes of such
adjustments, the maximum number of shares which the holders of any such rights,
options, warrants, or convertible or exchangeable securities shall be entitled
to initially subscribe for or purchase or convert or exchange such securities
into shall be deemed to be issued and outstanding as of the date of such
issuance, and the consideration received by the Corporation therefor shall be
deemed to be the consideration received by the Corporation for such rights,
options, warrants, or convertible or exchangeable securities, plus the minimum
aggregate consideration or premiums stated in such rights, options, warrants, or
convertible or exchangeable securities to be paid for the shares covered
thereby. No further adjustment of the Conversion Price or the Conversion Rate
shall be made as a result of the actual issuance of shares of Common Stock on
exercise of such rights, options, or warrants or on conversion or exchange of
such convertible or exchangeable securities. On the expiration or the
termination of such rights, options, or warrants, or the termination of such
right to convert or exchange, the Conversion Price and the Conversion Rate shall
be readjusted to such Conversion Price and such Conversion Rate as would have
obtained had the adjustments made upon the issuance of such rights, options,
warrants, or convertible or exchangeable securities been made upon the basis of
the delivery of only the number of shares of Common Stock actually delivered
upon the exercise of such rights, options, or warrants or upon the conversion or
exchange of any such securities; and on any change of the number of shares of
Common Stock deliverable upon the exercise of any such rights, options, or
warrants or conversion or exchange of such convertible or exchangeable
securities or any change in the consideration to be received by the Corporation
upon such exercise, conversion, or exchange, including, but not limited to, a
change resulting from the antidilution provisions thereof, the Conversion Price
and the Conversion Rate, as then in effect, shall forthwith be readjusted to
such Conversion Price and such Conversion Rate as would have been obtained had
an adjustment been made upon the issuance of such rights, options, or warrants
not exercised prior to such change, or securities not converted or exchanged
prior to such change, on the basis of such change. In case the Corporation shall
issue shares of Common Stock or any such rights, options, warrants, or
convertible or exchangeable securities for a consideration consisting, in whole
or in part, of property other than cash or its equivalent, then the "price per
share" and the "consideration received by the Corporation" for purposes of the
first sentence of this Section 5.2(d) shall be as determined in good faith by
the board of directors of the Corporation, whose determination shall be
conclusive absent manifest error. Shares of Common Stock owned by or held for
the account of the Corporation or any majority-owned subsidiary shall not be
deemed outstanding for the purpose of any such computation.
(e) No adjustment in the Conversion Price (and corresponding
adjustment in the Conversion Rate) shall be required if such adjustment in the
Conversion Price is less than $0.10; PROVIDED, HOWEVER, that any adjustments
which by reason of this Section 5.2 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 5.2 shall be made to the nearest cent or to the nearest
one-thousandth of a share, as the case may be.
(f) Whenever there shall be an adjustment as provided in
this Section 5.2, the Corporation shall promptly cause written notice thereof to
be sent by registered mail, postage prepaid, to each Holder, at its address as
it shall appear in the Share Register of the Corporation, which notice shall be
accompanied by an officer's certificate setting forth the number of Conversion
Shares purchasable upon the conversion of Shares of Series F Preferred Stock and
the Conversion Rate after such adjustment and setting forth a brief statement of
the facts requiring such adjustment and the computation thereof, which officer's
certificate shall be conclusive evidence of the correctness of any such
adjustment absent manifest error.
5.3 CONVERSION PROCEDURE. Upon the occurrence of any Liquidity
Event, the Corporation shall give written notice thereof to all Holders of
Series F Preferred Stock as of the date of such Liquidity Event, directing such
Holders to surrender their certificates representing their Shares in exchange
for certificates representing the Common Stock into which such Shares have been
converted by reason of such Liquidity Event; and from and after any Liquidity
Event
(a) the Shares shall no longer be outstanding for any purpose,
and shall represent only the right to receive the shares of Common
Stock into which such Shares have been converted by reason of such
Liquidity Event, and
(b) the Corporation shall, within five (5) business days after
each Holder's tender to the Corporation of the certificates
representing such Holder's Shares, deliver to such Holder the
certificates representing the shares of Common Stock into which such
Holder's Shares have been converted by reason of such Liquidity Event.
Upon any optional conversion by any Holder of Shares, such Holder shall give
written notice to the Corporation specifying the number of Shares to be
converted, and tendering the certificates representing such Shares for exchange
for certificates representing the Common Stock into which such Shares have been
converted; and any such optional conversion shall be deemed to be effective as
of the date on which the Corporation receives such Holder's notice of
conversion, at which time (i) the subject Shares which have been converted shall
no longer be outstanding for any purpose, (ii) the shares of Common Stock into
which such Shares have been converted shall then be deemed issued and
outstanding, and (iii) the Corporation shall deliver to the subject Holder,
within five (5) days after the Corporation's receipt of the certificates
representing the Shares being converted, the certificates representing the
shares of Common Stock into which such Shares have been converted. Any and all
shares of Common Stock into which Shares are converted pursuant to Section 5.1
above shall, upon issuance, be duly authorized, validly issued, fully paid and
non-assessable.
5.4 CONVERTED SHARES. Any Shares which are converted into Common
Stock under this Section 5 will be canceled, and such Shares may thereafter be
reissued as a part of a new series of Preferred Stock of the Corporation to be
created by resolution or resolutions of the Board of Directors of the
Corporation.
SECTION 6. VOTING RIGHTS.
6.1 GENERAL. Except for any matters for which separate class voting
is provided in Section 6.2 below, each outstanding Share of Series F Preferred
Stock shall entitle the Holder thereof on the subject record date for such vote,
voting together with the Holders of Common Stock as a single class on all
matters submitted to the Corporation's stockholders for voting or approval, to
cast a number of votes equal to the number of shares of Common Stock that would
be issuable upon conversion of such Share of Series F Preferred Stock into
Common Stock (pursuant to Section 5 above) on the record date for the subject
vote.
6.2 SEPARATE CLASS VOTING. In addition to the general voting rights
set forth in Section 6.1 above, the Holders of the outstanding Shares shall be
entitled, voting as a separate class, to vote with respect to the following
matters (with the affirmative vote of the Holders of a majority of the Shares
then outstanding being required for the adoption or approval of any such
matter):
(a) Any change in the preferences, rights or limitations of
the Series F Preferred Stock; and
(b) The creation of any series or class of capital stock of
the Corporation which is to be accorded parity with or seniority to
the Series F Preferred Stock upon liquidation, dissolution or winding
up of the Corporation, or which is entitled to any mandatory payment
of dividends; and
(c) The Holders of the outstanding Shares shall have the
right to designate and elect a majority of the entire Board of
Directors of the Corporation and each Subsidiary, with the remaining
members of such Boards of Directors to be elected by the affirmative
vote or consent of holders of a plurality of the outstanding shares of
Common Stock of the Corporation. In furtherance of the foregoing, it
is intended that, unless otherwise approved in writing by the Holders
of a majority of the Shares: (i) the entire Board of Directors of the
Corporation and each Subsidiary shall consist of not more than seven
(7) members; (ii) four (4) members of such Boards of Directors shall
be selected by the vote or consent of the Holders of a majority of the
outstanding Shares; (iii) the other three (3) members of such Boards
of Directors shall be elected by the affirmative vote or consent of
holders of a majority of the outstanding shares of Common Stock of the
Corporation; and (iv) in the event of increase or reduction in the
total number of directors of the Corporation or any Subsidiary, or in
the event of any vacancy on the Board of Directors of the Corporation
or any Subsidiary arising by reason of death, incapacity or
resignation of any director, such increase or reduction of the entire
Board(s) of Directors or the filling of such vacancy, as the case may
be, shall be consummated in such a manner so as to comply with the
requirements of this Section 6.2(c).
6.3 ACTIONS REQUIRING CONSENT OF HOLDERS OF SERIES F PREFERRED STOCK.
The following actions shall require the affirmative vote or consent of the
Holders of a majority of the outstanding shares of Series F Preferred Stock:
(a) the consolidation or merger of the Corporation with or
into another corporation, limited liability company, partnership or
other business entity (whether or not the Corporation is the surviving
entity) or the sale, assignment, transfer, lease, conveyance of any of
its subsidiaries in one or more related transactions where the
aggregate consideration paid is in excess of $1 million;
(b) the purchase or other acquisition of the business,
assets or securities of any corporation, limited liability company,
partnership or other business entity (whether by merger, other form of
business combination or otherwise) in one or more related
transactions, or the sale of the assets of the Corporation (in one or
a series of sales), in any case, where the aggregate consideration
paid is in excess of $1 million;
(c) the issuance of any Lanxide Equity Type Securities,
other than under obligations incurred prior to the initial issuance of
shares of Series F Preferred Stock or pursuant to employee stock
option plans or Deferred Compensation Plans, existing warrants
(including the Warrant) or conversion of Series A Preferred Stock, in
existence as of the date of the first issuance of shares of Series F
Preferred Stock;
(d) the issuance or assumption of any indebtedness for
borrowed money in an aggregate principal amount of more than $1
million by the Corporation or any subsidiary or the entering into of
any commitment letter, credit agreement, facility or arrangement
permitting the Corporation or any subsidiary to borrow an aggregate
principal amount of more than $1 million, in each case other than
(i) trade credit incurred in the ordinary course of business, or
(ii) any amendment to the terms of, or refinancing of, existing
indebtedness for borrowed money of the Corporation or any subsidiary
which has the effect of increasing the outstanding principal amount or
borrowing capacity thereunder by less than $1 million;
(e) declaration or payment of any dividend or distribution
on the shares of Common Stock, or the repurchase, redemption or other
acquisition of shares of Common Stock;
(f) any amendment to the Certificate of Incorporation or by-
laws of the Company;
(g) the entry into a line of business other than those
presently carried on by the Corporation and its Subsidiaries;
(h) the entry into any transaction with any affiliate of the
Corporation other than transactions entered into with Subsidiaries in
the ordinary course of business; or
(i) the authorization or issuance of any capital stock of
any subsidiary, or any options, rights, warrants or securities
convertible into or exchangeable for any capital stock of any
subsidiary (other than pursuant to employee stock option plans in
existence as of the date of the first issuance of shares of Series F
Preferred Stock).
SECTION 7. COSTS. The Corporation shall pay all documentary, stamp,
transfer or other transactional taxes attributable to the issuance or delivery
of shares of Common Stock upon conversion of any shares of the Series F
Preferred Stock; PROVIDED, HOWEVER, that the Corporation shall not be required
to pay any federal or state income taxes or other taxes which may be payable in
respect of any transfer involved in the issuance or delivery of any certificate
for such shares in a name other than that of the Holder of the shares of the
Series F Preferred Stock in respect of which such shares are being issued.
SECTION 8. CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE. In case of
any consolidation with or merger of the Corporation with or into another
corporation or other Person, or in case of any sale, lease or conveyance to
another corporation or other Person of the assets of the Corporation as an
entirety or substantially as an entirety, each share of the Series F Preferred
Stock shall after the date of such consolidation, merger, sale, lease or
conveyance be convertible into the number of shares of stock or other securities
or property (including cash) to which the Common Stock issuable (at the time of
such consolidation, merger, sale, lease or conveyance) upon conversion of such
share of the Series F Preferred Stock would have been entitled upon such
consolidation, merger, sale, lease or conveyance; and in any such case, if
necessary, the provisions set forth herein with respect to the rights and
interests thereafter of the Holders of the shares of the Series F Preferred
Stock shall be appropriately adjusted so as to be applicable, as nearly as may
reasonably be, to any shares of stock or other securities or property thereafter
deliverable on the conversion of the shares of the Series F Preferred Stock.
Nothing contained in this Section 8 shall be deemed to permit any transaction in
violation of any of the Corporation's covenants contained in the Securities
Purchase Agreement.
SECTION 9. RESERVATION OF SHARES. The Corporation shall at all times
reserve and keep available, out of its authorized but unissued shares of Common
Stock or out of shares of Common Stock held in its treasury, the full number of
shares of Common Stock into which all shares of the Series F Preferred Stock
having conversion privileges from time to time outstanding are convertible.
SECTION 10. REGISTRATION OF TRANSFER. The Corporation will keep at its
principal office a register for the registration of Series F Preferred Stock.
Upon the surrender of any certificate representing Series F Preferred Stock at
such place, the Corporation will, at the written request of the record Holder of
such certificate, execute and deliver (at the Corporation's expense) a new
certificate or certificates in exchange therefor representing in the aggregate
the number of Shares represented by the surrendered certificate. Each such new
certificate will be registered in such name and will represent such number of
Shares as is requested by the Holder of the surrendered certificate and will be
substantially identical in form to the surrendered certificate.
SECTION 11. REPLACEMENT. Upon receipt of evidence reasonably satisfactory
to the Corporation of the ownership and the loss, theft, destruction or
mutilation of any certificate evidencing Shares and in the case of any such
loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to
the Corporation (provided that if the Holder is a financial institution, an
entity whose securities are traded or listed on any national securities exchange
or recognized automated quotation system, or any Subsidiary of the foregoing,
then the Holder's own agreement will be satisfactory), or, in the case of any
such mutilation upon surrender of such certificate, the Corporation will (at its
expense) execute and deliver in lieu of such certificate a new certificate of
like kind representing the number of Shares represented by such lost, stolen,
destroyed or mutilated certificate and dated the date of such lost, stolen,
destroyed or mutilated certificate.
SECTION 12. DEFINITIONS. For purposes hereof, the following terms have
the meanings set forth below:
12.1 "COMMON STOCK" means the Corporation's Common Stock.
12.2 "CONVERSION SHARES" means shares of Common Stock issuable upon
conversion of the Series F Preferred Stock.
12.3 "HOLDER(S)". means the record holder or holders of Shares of
Series F Preferred Stock.
12.4 "JUNIOR SECURITIES" means any equity securities of the
Corporation other than (a) the shares of Series A Preferred Stock of the
Corporation outstanding as of the date of this Certificate of Designations, (b)
the Series F Preferred Stock, (c) the Series G Preferred Stock, or (d) any
series or class of capital stock of the Corporation as to which, by the written
consent or affirmative vote of the Holders of a majority of the Series F
Preferred Stock outstanding at the time of such consent or vote, is accorded
parity with or seniority to the Series F Preferred Stock.
12.5 "LANXIDE EQUITY TYPE SECURITIES" means any shares of Common
Stock or preferred stock of the Corporation of any class or series (including
the Shares), or any option or warrant exercisable for shares of Common Stock or
preferred stock of the Corporation of any class or series, or any notes,
debentures, rights or other securities which are convertible or exchangeable for
shares of Common Stock or preferred stock of the Corporation of any class or
series. The term "Lanxide Equity Type Securities" shall NOT, however, include
any royalties, fees, or other payments made in respect of any license, joint
venture or other joint working arrangement hereafter entered into by Lanxide
with any other Person.
12.6 "LIQUIDATION VALUE" of any Share as of any particular date
will be equal to One Hundred ($100) Dollars per Share.
12.7 "LIQUIDITY EVENT" shall mean the FIRST to occur of any of the
following events:
(a) the consummation by the Corporation of an underwritten
public offering of any of its equity securities, following which the
Common Stock is accepted for listing or is traded on any national
securities exchange or any recognized automated quotation system (such
as The NASDAQ Stock Market); or
(b) the sale of all or substantially all of the capital
stock or assets of the Corporation to, or any merger or consolidation
of the Corporation with or into, any Person which is not affiliated
with the Corporation prior to such transaction; or
(c) if 20,000 or fewer Shares are outstanding after
August 27, 1997, at any time AFTER such date, the Corporation shall
offer and sell $10.0 million or more of Lanxide Equity Type Securities
in a public offering registered under the Securities Act of 1933, as
amended (a "Public Offering"), or in any transaction or series of
transactions not otherwise constituting a public offering of
securities (a "Private Placement"); or
(d) if 105,000 Shares are outstanding on or after August 27,
1997, at any time AFTER December 31, 1997, if (i) the Board of
Directors of the Corporation shall determine in the exercise of its
reasonable business judgment that the Corporation's ability to retire
indebtedness and/or provide for ongoing liquidity would be best
achieved by the offer and sale of $10.0 million or more of Lanxide
Equity Type Securities in a Public Offering or Private Placement;
(ii) such Public Offering or Private Placement shall be consummated;
AND (iii) prior to or in connection with such Public Offering or
Private Placement, the holder(s) of the Warrant have not exercised and
purchased at least $10.0 million of Shares pursuant to such Warrant.
12.8 "PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a joint
venture, an unincorporated organization or any other business entity, a trust or
a governmental entity or any department, agency or political subdivision
thereof.
12.9 "SECURITIES PURCHASE AGREEMENT" means that certain Securities
Purchase Agreement dated July 3, 1997 by and between the Corporation and
Commodore Environmental Services, Inc., as same may be amended, modified,
supplemented and/or restated from time to time, pursuant to which the shares of
the Corporation's Series G Preferred Stock and Warrants were issued by the
Corporation.
12.10 "SERIES G PREFERRED STOCK" means the 250,000 shares of non-
voting, non-convertible series G preferred stock, $.01 par value per share, of
the Corporation authorized for issuance pursuant to the Corporation's
certificate of designation for such Series G Preferred Stock, dated of even date
herewith.
12.11 "SHARES" means the shares of Series F Preferred Stock of the
Corporation outstanding at any time and from time to time.
12.12 "SUBSIDIARY" means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which (a) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (b) if a partnership, limited liability company, association or other
business entity, a majority of the partnership or other similar ownership
interests thereof are at the time owned or controlled, directly or indirectly,
by any Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons will be deemed to have a
majority ownership interest in a partnership, limited liability company,
association or other business entity if such Person or Persons are allocated a
majority of partnership, limited liability company, association or other
business entity gains or losses or control the managing director or member or
general partner of such partnership, limited liability company, association of
other business entity.
12.13 "WARRANTS" means the warrants expiring June 30, 2000 to
purchase an aggregate of 250,000 Shares which have been issued pursuant to the
Securities Purchase Agreement.
SECTION 13. AMENDMENT AND WAIVER. No amendment, modification or waiver
will be binding or effective with respect to any provision of Sections 1 through
14 hereof without the prior written consent or affirmative vote of the Holders
of a majority of the Series F Preferred Stock outstanding at the time such
action is taken.
SECTION 14. NOTICES. Except as otherwise expressly provided hereunder,
all notices referred to herein will be in writing and will be delivered by
registered or certified mail, return receipt requested and postage prepaid, or
by reputable overnight courier service, charges prepaid, and will be deemed to
have been given when so mailed or sent (a) to the Corporation, at its principal
executive offices, and (b) to any stockholder, at such Holder's address as it
appears in the stock records of the Corporation (unless otherwise indicated by
notice given by any such Holder).
RESOLVED: That the statements contained in the foregoing
resolution creating and designating the said "Series F"
issue of the Preferred Stock of the Corporation and fixing
the number, powers, preferences and relative, optional,
participating and other special rights and the
qualifications, limitations, restrictions and other
distinguishing characteristics thereof shall, upon the
effective date of said Series, be deemed to be included in
and be a part of the certificate of incorporation of the
Corporation pursuant to the provisions of Sections 104 and
151 of the Delaware General Corporation Law.
Signed and attested to on July 3, 1997.
___________
/s/ Marc S. Newkirk
____________________________
Marc S. Newkirk, President
Attest:
/s/ Robert J. Ferris
_____________________________
Robert J. Ferris, Secretary
EXHIBIT A-2
___________
CERTIFICATE OF STOCK DESIGNATION
OF
LANXIDE CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is LANXIDE CORPORATION.
2. The certificate of incorporation of the Corporation authorizes the
issuance of 15,000,000 shares of preferred stock of the Corporation having a par
value of $.01 per share (the "Preferred Stock"), and expressly vests in the
Board of Directors of the Corporation the authority provided therein to fix by
resolution or resolutions the designation, number, preferences and relative,
participating, optional and other special rights and the qualifications,
limitations, restrictions and other distinguishing characteristics of each
series of Preferred Stock to be issued.
3. The Board of Directors of the Corporation, pursuant to the authority
expressly vested in it as aforesaid, has adopted the following resolutions
creating a Series G issue of the Preferred Stock of the Corporation as follows:
RESOLVED: That there shall be created a series of the Preferred
Stock of the Corporation, to be designated as "Series G" of such
Preferred Stock and to consist of 250,000 shares of such Preferred
Stock (each a "Share" and collectively the "Shares"), which will
have relative rights, preferences and limitations as follows:
Series G Preferred Stock
________________________
SECTION 1. DIVIDENDS. The Series G Preferred Stock will not entitle the
holders thereof to receive any dividends in respect of such Series G Preferred
Stock; PROVIDED, HOWEVER, that this Section 1 shall not prohibit or impair
payments to the holders of the Series G Preferred Stock upon liquidation,
dissolution or winding up of the Corporation in accordance with Section 2 below.
SECTION 2. LIQUIDATION. Upon any liquidation, dissolution or winding up of
the Corporation, each holder of Series G Preferred Stock will be entitled to be
paid, out of the net assets of the Corporation available for distribution to
stockholders of the Corporation, and before any distribution or payment is made
upon any Junior Securities, an amount in cash equal to the aggregate Liquidation
Value of all Shares held by such holder, and the holders of Series G Preferred
Stock will not be entitled to any further payment. If upon any such
liquidation, dissolution or winding up of the Corporation, the Corporation's
assets to be distributed among the holders of the Series G Preferred Stock and
the holders of all outstanding shares of any other series or class of preferred
stock that are not Junior Securities and which rank on a parity as to
liquidation with the Series G Preferred Stock are insufficient to permit payment
to such holders of the aggregate amounts which they are entitled to be paid,
then the entire assets to be distributed will be distributed ratably among such
holders based upon the aggregate Liquidation Value of the Series G Preferred
Stock and such other preferred stock held by each such holder. The Corporation
will mail written notice of such liquidation, dissolution or winding up, not
less than thirty (30) days prior to the payment date stated therein, to each
record holder of Series G Preferred Stock. Neither the consolidation or merger
of the Corporation into or with any other entity or entities, nor the sale or
transfer by the Corporation of all or any part of its assets, nor the reduction
of the capital stock of the Corporation, will be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this Section
2.
SECTION 3. PRIORITY OF SERIES G PREFERRED STOCK. The Series G Preferred
Stock shall rank junior to the Corporation's issued and outstanding Series A
Preferred Stock, shall rank on a parity with the Corporation's issued and
outstanding Series F Preferred Stock, and shall rank senior to the Corporation's
Series E Preferred Stock. So long as any of the Series G Preferred Stock
remains outstanding, neither the Corporation nor any Subsidiary will:
3.1 authorize or issue any class of preferred stock or other equity
securities which shall rank senior to the Series G Preferred Stock;
3.2 redeem, purchase or otherwise acquire directly or indirectly any
securities ranking on a parity with the Series G Preferred Stock, UNLESS
the Corporation shall first offer to the holder(s) of the Series G
Preferred Stock, pursuant to written notice given not more than sixty (60)
and not less than (30) days prior to the date fixed for such redemption,
purchase or acquisition, an opportunity to participate with the holders of
such other parity bsecurities in such redemption, purchase or acquisition
on a ratable basis with such holders of other parity securities, based upon
the aggregate Liquidation Value of the Series G Preferred Stock and such
other parity securities held by each such holder; or
3.3 redeem, purchase or otherwise acquire directly or indirectly any
Junior Securities (other than shares of Series E Preferred Stock pursuant
to the terms of its certificate of designations), or directly or indirectly
pay or declare any dividend or make any distribution upon any Junior
Securities, other than dividends payable solely in Junior Securities.
SECTION 4. REDEMPTIONS.
4.1 MANDATORY REDEMPTION. The Series G Preferred Stock shall not
be subject to mandatory redemption by the holder; PROVIDED, however, that to the
extent that any holder of Series G Preferred Stock is also the registered owner
of a Warrant of the Corporation, upon exercise by such holder of such Warrant
for shares of Series F Preferred Stock of the Corporation, the holder of Shares
of Series G Preferred Stock shall tender to the Corporation for cancellation
that number of whole Shares of Series G Preferred Stock, if any, then owned of
record by such holder, as shall be equal to the number of whole shares of Series
F Preferred Stock issued by the Corporation upon full or partial exercise of the
Warrant, and the Corporation shall redeem and cancel such number of Shares of
Series G Preferred Stock.
4.2 OPTIONAL REDEMPTION. The Series G Preferred Stock may not be
redeemed at the option of the Corporation prior to December 31, 1998. At any
time, or from time to time, from and after December 31, 1998, the Series G
Preferred Stock may be redeemed at the Liquidation Value per Share, at the sole
option of the Corporation, in increments of not less than 25,000 shares of
Series G Preferred Stock. Any optional redemption by the Corporation hereunder
will be made upon not less than thirty (30) days' prior written notice and not
more than sixty (60) days' prior written notice to the holders of the
outstanding Series G Preferred Stock. The holders of the Series G Preferred
Stock shall have the right, exercisable in their sole discretion at any time
prior to the date fixed for redemption, to utilize all or any portion of such
Series G Preferred Stock to exercise the Warrant and pay the exercise price
therefore in such shares of Series G Preferred Stock. Subject to the foregoing,
on the date fixed for redemption, the Corporation shall pay to the holders
thereof the applicable redemption price for all other shares of Series G
Preferred Stock called for redemption (such payment to be made, at the
Corporation's option, by wire transfer of immediately available funds or by
certified or bank cashier's check). Each date fixed for any such optional
redemption is herein referred to as an "OPTIONAL REDEMPTION DATE."
4.3 REDEMPTION PROCEDURE. For each Share of Series G Preferred Stock
which is to be redeemed, the Corporation will be obligated on the subject
Optional Redemption Date to pay to the holder thereof (upon surrender by such
holder at the Corporation's principal office of the certificate representing
such Share) an amount in immediately available funds equal to applicable
redemption price therefor at the Liquidation Value per Share.
4.4 REISSUANCE OF CERTIFICATES. In case fewer than the total number
of Shares represented by any stock certificate are redeemed or converted, a new
certificate representing the number of unredeemed and unconverted Shares will be
issued to the holder thereof without cost to such holder within five (5)
business days after surrender of the certificate representing the redeemed
Shares.
4.5 REDEEMED OR OTHERWISE ACQUIRED SHARES. Any Shares which are
redeemed or otherwise acquired by the Corporation will be canceled, and so long
as any Series G Preferred Stock remains outstanding, such Shares may thereafter
be reissued as such Series G Preferred Stock or as a part of a new series of
Preferred Stock of the Corporation to be created by resolution or resolutions of
the Board of Directors of the Corporation.
SECTION 5. CONVERSION. The Series G Preferred Stock shall not be
convertible into Common Stock or any other securities of the Corporation.
SECTION 6. VOTING RIGHTS AND CONSENT.
6.1 GENERAL. Except for any matters for which separate class voting
is provided in Section 6.2 below, the Shares of Series G Preferred Stock shall
not be entitled to vote on any matter requiring the affirmative vote or
ratification by stockholders of the Corporation.
6.2 SEPARATE CLASS VOTING. The holders of the outstanding Shares
shall be entitled, voting as a separate class, to vote with respect ONLY to any
change in the preferences, rights or limitations of the Series G Preferred Stock
(with the affirmative vote of the holders of a majority of the Shares then
outstanding being required for the adoption or approval of any such matter).
6.3 ACTIONS REQUIRING CONSENT OF HOLDERS OF SERIES G PREFERRED STOCK.
The following actions shall require the affirmative vote or consent of a
majority of the designees of the Holders of the outstanding shares of Series G
Preferred Stock on the Corporation's Board of Directors:
(a) the consolidation or merger of the Corporation with or into
another corporation, limited liability company, partnership or other
business entity (whether or not the Corporation is the surviving
entity) or the sale, assignment, transfer, lease, conveyance of any of
its subsidiaries in one or more related transactions where the
aggregate consideration paid is in excess of $1 million;
(b) the purchase or other acquisition of the business, assets or
securities of any corporation, limited liability company, partnership
or other business entity (whether by merger, other form of business
combination or otherwise) in one or more related transactions, or the
sale of the assets of the Corporation (in one or a series of sales),
in any case, where the aggregate consideration paid is in excess of
$1 million;
(c) the issuance of any Lanxide Equity Type Securities, other
than under the Corporation's Series F Preferred Stock or obligations
incurred prior to the initial issuance of shares of Series G Preferred
Stock or pursuant to employee stock option plans or Deferred
Compensation Plans, existing warrants (including the Warrant) or
conversion of Series A Preferred Stock in existence as of the date of
the first issuance of shares of Series G Preferred Stock;
(d) the issuance or assumption of any indebtedness for borrowed
money in an aggregate principal amount of more than $1 million by the
Corporation or any subsidiary or the entering into of any commitment
letter, credit agreement, facility or arrangement permitting the
Corporation or any subsidiary to borrow an aggregate principal amount
of more than $1 million, in each case other than (i) trade credit
incurred in the ordinary course of business, or (ii) any amendment to
the terms of, or refinancing of, existing indebtedness for borrowed
money of the Corporation or any subsidiary which has the effect of
increasing the outstanding principal amount or borrowing capacity
thereunder by less than $1 million;
(e) declaration or payment of any dividend or distribution on
the shares of Common Stock, or the repurchase, redemption or other
acquisition of shares of Common Stock;
(f) any amendment to the Certificate of Incorporation or by-laws
of the Company;
(g) the entry into a line of business other than those presently
carried on by the Corporation and its Subsidiaries;
(h) the entry into any transaction with any affiliate of the
Corporation other than transactions entered into with Subsidiaries in
the ordinary course of business; or
(i) the authorization or issuance of any capital stock of any
subsidiary, or any options, rights, warrants or securities convertible
into or exchangeable for any capital stock of any subsidiary (other
than with respect to the Series F Preferred Stock or pursuant to
employee stock option plans in existence as of the date of the first
issuance of shares of Series G Preferred Stock).
SECTION 7. COSTS. The Corporation shall pay all documentary,
stamp, transfer or other transactional taxes attributable to the issuance or
delivery of shares of Series F Preferred Stock upon exercise of the Warrant and
exchange of any shares of the Series G Preferred Stock; PROVIDED, HOWEVER, that
the Corporation shall not be required to pay any federal or state income taxes
or other taxes which may be payable in respect of any transfer involved in the
issuance or delivery of any certificate for such shares in a name other than
that of the holder of the shares of the Series G Preferred Stock in respect of
which such shares are being issued.
SECTION 8. CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE. In
case of any consolidation with or merger of the Corporation with or into another
corporation or other Person who is not an Affiliate of the Corporation, or in
case of any sale, lease or conveyance to another corporation or other Person who
is not an Affiliate of the Corporation of the assets of the Corporation as an
entirety or substantially as an entirety (a "Sale of Control"), each outstanding
Share of the Series G Preferred Stock shall, on or within five (5) business days
after the date of such Sale of Control, be redeemed by the successor-in-interest
to the Corporation for cash at the Redemption Value per Share, unless the
holder(s) of Shares of Series G Preferred Stock shall have previously elected to
exercise all or any portion of the Warrant by exchanging Series G Preferred
Stock for Warrant Shares. Nothing contained in this Section 8 shall be deemed
to permit any transaction in violation of any of the Corporation's covenants
contained in the Securities Purchase Agreement.
SECTION 9. REGISTRATION OF TRANSFER. The Corporation will keep at
its principal office a register for the registration of Series G Preferred
Stock. Upon the surrender of any certificate representing Series G Preferred
Stock at such place, the Corporation will, at the written request of the record
holder of such certificate, execute and deliver (at the Corporation's expense) a
new certificate or certificates in exchange therefor representing in the
aggregate the number of Shares represented by the surrendered certificate. Each
such new certificate will be registered in such name and will represent such
number of Shares as is requested by the holder of the surrendered certificate
and will be substantially identical in form to the surrendered certificate.
SECTION 10. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Corporation of the ownership and the loss, theft,
destruction or mutilation of any certificate evidencing Shares and in the case
of any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the holder is a financial
institution, an entity whose securities are traded or listed on any national
securities exchange or recognized automated quotation system, or any Subsidiary
of the foregoing, then the holder's own agreement will be satisfactory), or, in
the case of any such mutilation upon surrender of such certificate, the
Corporation will (at its expense) execute and deliver in lieu of such
certificate a new certificate of like kind representing the number of Shares
represented by such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated certificate.
SECTION 11. DEFINITIONS. For purposes hereof, the following terms
have the meanings set forth below:
11.1 "AFFILIATE" means any Person directly or indirectly
controlling, controlled by, or under common control with the Person in question
or any Affiliate of such Person.
11.2 "COMMON STOCK" means the Corporation's Common Stock.
11.3 "JUNIOR SECURITIES" means any equity securities of the
Corporation, OTHER than (a) the shares of Series A Preferred Stock of the
Corporation outstanding as of the date of this Certificate of Designation,
(b) the Series F Preferred Stock, or (c) any series or class of capital stock of
the Corporation as to which, by the written consent or affirmative vote of the
holders of a majority of the Series G Preferred Stock outstanding at the time of
such consent or vote, is accorded parity with or seniority to the Series G
Preferred Stock.
11.4 "LIQUIDATION VALUE" of any Share as of any particular date will
be equal to One Hundred ($100) Dollars per Share.
11.5 "PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a joint
venture, an unincorporated organization or any other business entity, a trust or
a governmental entity or any department, agency or political subdivision
thereof.
11.6 "SECURITIES PURCHASE AGREEMENT" means that certain Securities
Purchase Agreement dated July 3, 1997 by and between the Corporation and
Commodore Environmental Services, Inc., as same may be amended, modified,
supplemented and/or restated from time to time, pursuant to which the Shares and
Warrants were issued by the Corporation.
11.7 "SERIES F PREFERRED STOCK" means the 250,000 shares of
convertible voting series F Preferred Stock, $.01 par value per share, of the
Corporation, authorized by a separate certificate of designation of the
Corporation for such Series F Preferred Stock, dated of even date herewith.
11.8 "SHARES" means the shares of Series G Preferred Stock of the
Corporation outstanding at any time and from time to time.
11.9 "SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which (a) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (b) if a partnership,
limited liability company, association or other business entity, a majority of
the partnership or other similar ownership interests thereof are at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons will be deemed to have a majority ownership interest in a
partnership, limited liability company, association or other business entity if
such Person or Persons are allocated a majority of partnership, limited
liability company, association or other business entity gains or losses or
control the managing director or member or general partner of such partnership,
limited liability company, association of other business entity.
11.10 "WARRANT" means the three year warrant to purchase an
aggregate of 250,000 shares of Series F Preferred Stock which have been issued
pursuant to the Securities Purchase Agreement.
11.11 "WARRANT SHARES" means all or any portion of the 250,000
shares of Series F Preferred Stock of the Corporation issuable upon exercise of
the Warrant.
SECTION 12. AMENDMENT AND WAIVER. No amendment, modification or waiver
will be binding or effective with respect to any provision of Sections 1 through
14 hereof without the prior written consent or affirmative vote of the holders
of a majority of the Series G Preferred Stock outstanding at the time such
action is taken.
SECTION 13. NOTICES. Except as otherwise expressly provided hereunder,
all notices referred to herein will be in writing and will be delivered by
registered or certified mail, return receipt requested and postage prepaid, or
by reputable overnight courier service, charges prepaid, and will be deemed to
have been given when so mailed or sent (a) to the Corporation, at its principal
executive offices, and (b) to any stockholder, at such holder's address as it
appears in the stock records of the Corporation (unless otherwise indicated by
notice given by any such holder).
RESOLVED: That the statements contained in the foregoing
resolution creating and designating the said "Series G"
issue of the Preferred Stock of the Corporation and fixing
the number, powers, preferences and relative, optional,
participating and other special rights and the
qualifications, limitations, restrictions and other
distinguishing characteristics thereof shall, upon the
effective date of said Series, be deemed to be included in
and be a part of the certificate of incorporation of the
Corporation pursuant to the provisions of Sections 104 and
151 of the Delaware General Corporation Law.
Signed and attested to on July 3, 1997.
__________
/s/ Marc S. Newkirk
____________________________
Marc S. Newkirk, President
Attest:
/s/ Robert J. Ferris
_____________________________
Robert J. Ferris, Secretary
EXHIBIT B
_________
NEITHER THE WARRANTS REPRESENTED BY THIS CERTIFICATE NOR THE
SHARES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NEITHER THE
WARRANTS NOR SUCH SHARES MAY BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT, OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT.
LANXIDE CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF SERIES F PREFERRED STOCK
No. 1 250,000 Shares
THIS CERTIFIES that, for value received, Commodore Environmental Services,
Inc. (the "Holder"), is entitled to subscribe for and purchase from Lanxide
Corporation, a Delaware corporation (the "Company"), upon the terms and
conditions set forth herein, at any time or from time to time after the date
hereof and before 5:00 P.M. (New York City time) on June 30, 2000, New York time
(the "Exercise Period"), Two Hundred and Fifty Thousand (250,000) shares of
Series F preferred stock, par value $.01 per share, of the Company (the "Series
F Preferred Stock"), at an exercise price of $100.00 per share (the "Exercise
Price"). This Warrant is issued in connection with the sale to the Holder of up
to 105,000 shares of the Company's non-voting, non-convertible Series G
Preferred Stock, $.01 par value per share, of the Company (the "Series G
Preferred Stock") pursuant to a Securities Purchase Agreement, dated July 3,
1997, by and between the Holder and the Company (the "Securities Purchase
Agreement"). As used herein the term "this Warrant" shall mean and include this
Warrant and any Warrant or Warrants hereafter issued as a consequence of the
exercise or transfer of this Warrant in whole or in part.
The number of shares of Series F Preferred Stock issuable upon exercise of
the Warrants (the "Warrant Shares") and the Exercise Price may be adjusted from
time to time as hereinafter set forth.
1. This Warrant may be exercised during the Exercise Period, as to the
whole or any lesser number of the respective whole Warrant Shares, by the
surrender of this Warrant (with the election at the end hereof duly executed) to
the Company at its office as set forth in the form of election attached hereto,
or at such other place as is designated in writing by the Company, together with
a certified or bank cashier's check payable to the order of the Company in an
amount equal to the Exercise Price multiplied by the number of respective
Warrant Shares for which this Warrant is being exercised. Notwithstanding the
foregoing, or any other provision of this Warrant to the contrary, to the extent
that the Holder shall have purchased shares of Series G Preferred Stock of the
Company, this Warrant may be exercised by the Holder and the Exercise Price for
one or more Warrant Shares may be paid by the Holder's surrender for
cancellation of a corresponding number of shares of Series G Preferred Stock.
Upon such Holder's delivery of such share(s) of Series G Preferred Stock, duly
endorsed in blank for transfer, the Company shall simultaneously deliver to the
Holder of this Warrant that number of Warrant Shares representing one or more
shares of Series F Preferred Stock which shall be equal to the number of shares
of Series G Preferred Stock so surrendered for cancellation. Upon issuance of
such Warrant Shares, the Corporation shall cancel the shares of Series G
Preferred Stock so surrendered by the Holder. In the event and to the extent
that all shares of Series G Preferred Stock acquired by the Holder pursuant to
the Securities Purchase Agreement shall have been so surrendered for
cancellation and Warrant Shares issued therefor, the Exercise Price for all
remaining Warrant Shares issuable pursuant to this Warrant shall be paid in
accordance with the first sentence of this Section 1.
2. Upon each exercise of the Holder's rights to purchase Warrant Shares
and payment of the Exercise Price, the Holder shall be deemed to be the holder
of record of the Warrant Shares issuable upon such exercise, notwithstanding
that the transfer books of the Company shall then be closed or certificates
representing such Warrant Shares shall not then have been actually delivered to
the Holder. As soon as practicable after each such exercise of this Warrant and
payment by the Holder, the Company shall issue and cause to be delivered a
certificate or certificates for the Warrant Shares issuable upon such exercise,
registered in the name of the Holder or its designee. If the Warrant should be
exercised in part only, the Company shall, upon surrender of this Warrant for
cancellation, execute and deliver a new Warrant evidencing the right of the
Holder to purchase the balance of the Warrant Shares (or portions thereof)
subject to purchase hereunder.
3. Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a Warrant Register as they
are issued. The Company shall be entitled to treat the registered holder of any
Warrant on the Warrant Register as the Owner in fact thereof for all purposes
and shall not be bound to recognize any equitable or other claim to or interest
in such Warrant on the part of any other person, and shall not be liable for any
registration or transfer of Warrants which are registered or to be registered in
the name of a fiduciary or the nominee of a fiduciary unless made with the
actual knowledge that a fiduciary or nominee is committing a breach of trust in
requesting such registration or transfer, or with the knowledge of such facts
that its participation therein amounts to bad faith. This Warrant shall be
transferable only on the books of the Company upon delivery thereof duly
endorsed by the Holder or by his duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment, or authority to
transfer. In all cases of transfer by an attorney, executor, administrator,
guardian, or other legal representative, duly authenticated evidence of his or
its authority shall be produced. Upon any registration of transfer, the Company
shall deliver a new Warrant or Warrants to the person entitled thereto. This
Warrant may be exchanged, at the option of the Holder thereof, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Warrant
Shares (or portions thereof), upon surrender to the Company or its duly
authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause Warrants to be transferred on its books to any person if, in
the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act of 1933, as amended (the "Act"), and the rules
and regulations thereunder.
4. The Company shall at all times reserve and keep available out of its
authorized and unissued Series F Preferred Stock, solely for the purpose of
providing for the exercise of the rights to purchase all Warrant Shares granted
pursuant to the Warrants, such number of shares of Series F Preferred Stock as
shall, from time to time, be sufficient therefor. The Company covenants that all
shares of Series F Preferred Stock issuable upon exercise of this Warrant, upon
receipt by the Company of the full Exercise Price therefor, shall be validly
issued, fully paid, nonassessable, and free of preemptive rights.
5. (a) In case the Company shall at any time after the date the Warrants
were first issued (i) declare a dividend on the outstanding Series F Preferred
Stock payable in shares of its capital stock, (ii) subdivide the outstanding
Series F Preferred Stock, (iii) combine the outstanding Series F Preferred Stock
into a smaller number of shares, or (iv) issue any shares of its capital stock
by reclassification of the Series F Preferred Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then, in each case, the Exercise Price,
and the number of Warrant Shares issuable upon exercise of this Warrant, in
effect at the time of the record date for such dividend or of the effective date
of such subdivision, combination, or reclassification, shall be proportionately
adjusted so that the Holder after such time shall be entitled to receive the
aggregate number and kind of shares which, if such Warrant had been exercised
immediately prior to such time, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination, or
reclassification. Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) In case the Company shall issue or fix a record date for the
issuance to all holders of Series F Preferred Stock of rights, options, or
warrants to subscribe for or purchase Series F Preferred Stock (or securities
convertible into or exchangeable for Series F Preferred Stock) at a price per
share (or having a conversion or exchange price per share, if a security
convertible into or exchangeable for Series F Preferred Stock) less than the
Exercise Price per share of Series F Preferred Stock on such record date, then,
in each case, the Exercise Price shall be adjusted by multiplying the Exercise
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Series F Preferred Stock
outstanding on such record date plus the number of shares of Series F Preferred
Stock which the aggregate offering price of the total number of shares of Series
F Preferred Stock so to be offered (or the aggregate initial conversion or
exchange price of the convertible or exchangeable securities so to be offered)
would purchase at such current Exercise Price and the denominator of which shall
be the number of shares of Series F Preferred Stock outstanding on such record
date plus the number of additional shares of Series F Preferred Stock to be
offered for subscription or purchase (or into which the convertible or
exchangeable securities so to be offered are initially convertible or
exchangeable). Such adjustment shall become effective at the close of business
on such record date; PROVIDED, HOWEVER, that, to the extent the shares of
Series F Preferred Stock (or securities convertible into or exchangeable for
shares of Series F Preferred Stock) are not delivered, the Exercise Price shall
be readjusted after the expiration of such rights, options, or warrants (but
only with respect to Warrants exercised after such expiration), to the Exercise
Price which would then be in effect had the adjustments made upon the issuance
of such rights, options, or warrants been made upon the basis of delivery of
only the number of shares of Series F Preferred Stock (or securities convertible
into or exchangeable for shares of Series F Preferred Stock) actually issued.
In case any subscription price may be paid in a consideration part or all of
which shall be in a form other than cash, the value of such consideration shall
be as determined in good faith by the board of directors of the Company, whose
determination shall be conclusive absent manifest error. Shares of Series F
Preferred Stock owned by or held for the account of the Company or any
majority-owned subsidiary shall not be deemed outstanding for the purpose of any
such computation.
(c) In case the Company shall distribute to all holders of Series F
Preferred Stock (including any such distribution made to the stockholders of the
Company in connection with a consolidation or merger in which the Company is the
continuing corporation) evidences of its indebtedness or assets (other than cash
dividends or distributions and dividends payable in shares of Series F Preferred
Stock), or rights, options, or warrants to subscribe for or purchase Series F
Preferred Stock, or securities convertible into or exchangeable for shares of
Series F Preferred Stock (excluding those with respect to the issuance of which
an adjustment of the Exercise Price is provided pursuant to Section 5(b)
hereof), then, in each case, the Exercise Price shall be adjusted by multiplying
the Exercise Price in effect immediately prior to the record date for the
determination of stockholders entitled to receive such distribution by a
fraction, the numerator of which shall be the Exercise Price per share of
Series F Preferred Stock on such record date, less the fair market value (as
determined in good faith by the board of directors of the Company, whose
determination shall be conclusive absent manifest error) of the portion of the
evidences of indebtedness or assets so to be distributed, or of such rights,
options, or warrants or convertible or exchangeable securities, applicable to
one share, and the denominator of which shall be such current Exercise Price per
share of Series F Preferred Stock. Such adjustment shall be made whenever any
such distribution is made, and shall become effective on the record date for the
determination of shareholders entitled to receive such distribution.
(d) In case the Company shall issue shares of Series F Preferred
Stock or rights, options, or warrants to subscribe for or purchase Series F
Preferred Stock, or securities convertible into or exchangeable for Series F
Preferred Stock (excluding only shares, rights, options, warrants, or
convertible or exchangeable securities issued or issuable (i) in any of the
transactions with respect to which an adjustment of the Exercise Price is
provided pursuant to Sections 5(a), 5(b) or 5(c) above, (ii) upon exercise, in
whole or in part, of the Warrants or (iii) to management or employees of the
Company of authorized shares of Series F Preferred Stock), at a price per share
(determined, in the case of such rights, options, warrants, or convertible or
exchangeable securities, by dividing (x) the total amount received or receivable
by the Company in consideration of the sale and issuance of such rights,
options, warrants, or convertible or exchangeable securities, plus the minimum
aggregate consideration payable to the Company upon exercise, conversion, or
exchange thereof, by (y) the maximum number of shares covered by such rights,
options, warrants, or convertible or exchangeable securities) lower than the
Exercise Price per share of Series F Preferred Stock in effect immediately prior
to such issuance, then the Exercise Price shall be reduced on the date of such
issuance to a price (calculated to the nearest cent) determined by multiplying
the Exercise Price in effect immediately prior to such issuance by a fraction,
(i) the numerator of which shall be an amount equal to the sum of (A) the number
of shares of Series F Preferred Stock outstanding immediately prior to such
issuance plus (B) the quotient obtained by dividing the consideration received
by the Company upon such issuance by such current Exercise Price, and (ii) the
denominator of which shall be the total number of shares of Series F Preferred
Stock outstanding immediately after such issuance. For the purposes of such
adjustments, the maximum number of shares which the holders of any such rights,
options, warrants, or convertible or exchangeable securities shall be entitled
to initially subscribe for or purchase or convert or exchange such securities
into shall be deemed to be issued and outstanding as of the date of such
issuance, and the consideration received by the Company therefor shall be deemed
to be the consideration received by the Company for such rights, options,
warrants, or convertible or exchangeable securities, plus the minimum aggregate
consideration or premiums stated in such rights, options, warrants, or
convertible or exchangeable securities to be paid for the shares covered
thereby. No further adjustment of the Exercise Price shall be made as a result
of the actual issuance of shares of Series F Preferred Stock on exercise of such
rights, options, or warrants or on conversion or exchange of such convertible or
exchangeable securities. On the expiration or the termination of such rights,
options, or warrants, or the termination of such right to convert or exchange,
the Exercise Price shall be readjusted (but only with respect to Warrants
exercised after such expiration or termination) to such Exercise Price as would
have obtained had the adjustments made upon the issuance of such rights,
options, warrants, or convertible or exchangeable securities been made upon the
basis of the delivery of only the number of shares of Series F Preferred Stock
actually delivered upon the exercise of such rights, options, or warrants or
upon the conversion or exchange of any such securities; and on any change of the
number of shares of Series F Preferred Stock deliverable upon the exercise of
any such rights, options, or warrants or conversion or exchange of such
convertible or exchangeable securities or any change in the consideration to be
received by the Company upon such exercise, conversion, or exchange, including,
but not limited to, a change resulting from the antidilution provisions thereof,
the Exercise Price, as then in effect, shall forthwith be readjusted (but only
with respect to Warrants exercised after such change) to such Exercise Price as
would have been obtained had an adjustment been made upon the issuance of such
rights, options, or warrants not exercised prior to such change, or securities
not converted or exchanged prior to such change, on the basis of such change. In
case the Company shall issue shares of Series F Preferred Stock or any such
rights, options, warrants, or convertible or exchangeable securities for a
consideration consisting, in whole or in part, of property other than cash or
its equivalent, then the "price per share" and the "consideration received by
the Company" for purposes of the first sentence of this Section 5(d) shall be as
determined in good faith by the board of directors of the Company, whose
determination shall be conclusive absent manifest error. Shares of Series F
Preferred Stock owned by or held for the account of the Company or any
majority-owned subsidiary shall not be deemed outstanding for the purpose of any
such computation.
(e) No adjustment in the Exercise Price shall be required if such
adjustment is less than $0.10; PROVIDED, HOWEVER, that any adjustments which by
reason of this Section 5 are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under
this Section 5 shall be made to the nearest cent or to the nearest
one-thousandth of a share, as the case may be.
(f) In any case in which this Section 5 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer, until the occurrence of such
event, issuing to the Holder, if the Holder exercised this Warrant after such
record date, the shares of Series F Preferred Stock, if any, issuable upon such
exercise over and above the shares of Series F Preferred Stock, if any, issuable
upon such exercise on the basis of the Exercise Price in effect prior to such
adjustment; PROVIDED, HOWEVER, that the Company shall deliver to the Holder a
due bill or other appropriate instrument evidencing the Holder's right to
receive such additional shares upon the occurrence of the event requiring such
adjustment.
(g) Upon each adjustment of the Exercise Price as a result of the
calculations made in Sections 5(b), 5(c) or 5(d) hereof, this Warrant shall
thereafter evidence the right to purchase, at the adjusted Exercise Price, that
number of shares (calculated to the nearest thousandth) obtained by dividing
(A) the product obtained by multiplying the number of shares purchasable upon
exercise of this Warrant prior to adjustment of the number of shares by the
Exercise Price in effect prior to adjustment of the Exercise Price by (B) the
Exercise Price in effect after such adjustment of the Exercise Price.
(h) Whenever there shall be an adjustment as provided in this Section
5, the Company shall promptly cause written notice thereof to be sent by
registered mail, postage prepaid, to the Holder, at its address as it shall
appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the number of Warrant Shares purchasable
upon the exercise of this Warrant and the Exercise Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment and
the computation thereof, which officer's certificate shall be conclusive
evidence of the correctness of any such adjustment absent manifest error.
6. (a) In case of any consolidation with or merger of the Company with
or into another corporation (other than a merger or consolidation in which the
Company is the surviving or continuing corporation), or in case of any sale,
lease, or conveyance to another corporation of the property and assets of any
nature of the Company as an entirety or substantially as an entirety, such
successor, leasing, or purchasing corporation, as the case may be, shall
(i) execute with the Holder an agreement providing that the Holder shall have
the right thereafter to receive upon exercise of this Warrant solely the kind
and amount of shares of stock and other securities, property, cash, or any
combination thereof receivable upon such consolidation, merger, sale, lease, or
conveyance by a holder of the number of shares of Series F Preferred Stock for
which this Warrant might have been exercised immediately prior to such
consolidation, merger, sale, lease, or conveyance and (ii) make effective
provision in its certificate of incorporation or otherwise, if necessary, to
effect such agreement. Such agreement shall provide for adjustments which shall
be as nearly equivalent as practicable to the adjustments in Section 5.
(b) In case of any reclassification or change of the shares of
Series F Preferred Stock issuable upon exercise of this Warrant (other than a
change in par value or from no par value to a specified par value, or as a
result of a subdivision or combination, but including any change in the shares
into two or more classes or series of shares), or in case of any consolidation
or merger of another corporation into the Company in which the Company is the
continuing corporation and in which there is a reclassification or change
(including a change to the right to receive cash or other property) of the
shares of Series F Preferred Stock (other than a change in par value, or from no
par value to a specified par value, or as a result of a subdivision or
combination, but including any change in the shares into two or more classes or
series of shares), the Holder shall have the right thereafter to receive upon
exercise of this Warrant solely the kind and amount of shares of stock and other
securities, property, cash, or any combination thereof receivable upon such
reclassification, change, consolidation, or merger by a holder of the number of
shares of Series F Preferred Stock for which this Warrant might have been
exercised immediately prior to such reclassification, change, consolidation, or
merger. Thereafter, appropriate provision shall be made for adjustments which
shall be as nearly equivalent as practicable to the adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Series F Preferred Stock
and to successive consolidations, mergers, sales, leases, or conveyances.
7. In case at any time the Company shall propose
(a) to pay any dividend or make any distribution on shares of Series
F Preferred Stock in shares of Series F Preferred Stock or make any other
distribution (other than regularly scheduled cash dividends which are not in a
greater amount per share than the most recent such cash dividend) to all holders
of Series F Preferred Stock; or
(b) to issue any rights, warrants, or other securities to all holders
of Series F Preferred Stock entitling them to purchase any additional shares of
Series F Preferred Stock or any other rights, warrants, or other securities; or
(c) to effect any reclassification or change of outstanding shares of
Series F Preferred Stock, or any consolidation, merger, sale, lease, or
conveyance of property, described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price;
then, and in any one or more of such cases, the Company shall give written
notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 10
days prior to (i) the date as of which the holders of record of shares of
Series F Preferred Stock to be entitled to receive any such dividend,
distribution, rights, warrants, or other securities are to be determined,
(ii) the date on which any such reclassification, change of outstanding shares
of Series F Preferred Stock, consolidation, merger, sale, lease, conveyance of
property, liquidation, dissolution, or winding-up is expected to become
effective, and the date as of which it is expected that holders of record of
shares of Series F Preferred Stock shall be entitled to exchange their shares
for securities or other property, if any, deliverable upon such
reclassification, change of outstanding shares, consolidation, merger, sale,
lease, conveyance of property, liquidation, dissolution, or winding-up, or
(iii) the date of such action which would require an adjustment to the Exercise
Price.
8. The issuance of any shares or other securities upon the exercise of
this Warrant, and the delivery of certificates or other instruments representing
such shares or other securities, shall be made without charge to the Holder for
any tax or other charge in respect of such issuance. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of any certificate in a name other
than that of the Holder and the Company shall not be required to issue or
deliver any such certificate unless and until the person or persons requesting
the issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
9. Certificates evidencing the Warrant Shares issued upon exercise of the
Warrants shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH SHARES MAY NOT BE
OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT, OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT."
10. Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction, or mutilation of any Warrant (and upon surrender of any
Warrant if mutilated) and a certificate executed by the Holder and provided by
the Company pursuant to which the Holder agrees to indemnify the Company for any
claims, losses or liability the Company may suffer on account of the issuance of
a new certificate, and upon reimbursement of the Company's reasonable incidental
expenses, the Company shall execute and deliver to the Holder thereof a new
Warrant of like date, tenor, and denomination.
11. The Holder of any Warrant shall not have, solely on account of such
status, any rights of a stockholder of the Company, either at law or in equity,
or to any notice of meetings of stockholders or of any other proceedings of the
Company, except as provided in this Warrant.
12. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested or sent by Federal Express, Express Mail, or similar overnight
delivery or courier service or delivered (in person or by telecopy, telex, or
similar telecommunications equipment) against receipt to the party to whom it is
to be given, if sent to the Company, at: 150 East 58th Street, Suite 3400, New
York, New York 10155, Attention: The Chairman or the Chief Executive Officer; or
if sent to the Holder, at the Holder's address as it shall appear on the Warrant
Register; or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 14. Any notice or other
communication given by certified mail shall be deemed given at the time of
certification thereof, except for a notice changing a party's address which will
be deemed given at the time of receipt thereof. Any notice given by other means
permitted by this Section 14 shall be deemed given at the time of receipt
thereof.
13. This Warrant shall be binding upon the Company and its successors and
assigns and shall inure to the benefit of the Holder and its successors and
assigns.
14. This Warrant shall be construed in accordance with the laws of the
State of New York applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
15. The Company irrevocably consents to the jurisdiction of the courts of
the State of New York and of any federal court located in such State in
connection with any action or proceeding arising out of or relating to this
Warrant, any document or instrument delivered pursuant to, in connection with or
simultaneously with this Warrant, or a breach of this Warrant or any such
document or instrument. In any such action or proceeding, the Company waives
personal service of any summons, complaint or other process.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Warrant on the date and year set forth below.
Dated: July 3, 1997
LANXIDE CORPORATION
By: /s/ Marc S. Newkirk
___________________________
Name: Marc S. Newkirk
Title: President
[Seal]
/s/ Robert J. Ferris
_________________________
Secretary
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant.)
FOR VALUE RECEIVED, _______________________ hereby sells, assigns,
and transfers unto _____________________ a Warrant to purchase shares of Series
F Preferred Stock, par value $.01 per share, of Lanxide Corporation (the
"Company"), together with all right, title, and interest therein, and does
hereby irrevocably constitute and appoint ___________________ attorney to
transfer such Warrant on the books of the Company, with full power of
substitution.
Dated:
Signature
__________________________
NOTICE
The signature on the foregoing Assignment must correspond to the name as
written upon the face of this Warrant in every particular, without alteration or
enlargement or any change whatsoever.
To: Lanxide Corporation
1300 Marrows Road
Newark, Delaware 19714-6077
Attn: Marc S. Newkirk, President
ELECTION TO EXERCISE
The undersigned hereby exercises its rights to purchase ___________________
Warrant Shares covered by the within warrant and tenders payment herewith in the
amount of $______________ in accordance with the terms thereof, and requests
that certificates for such securities be issued in the name of, and delivered
to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the Warrant
Shares covered by the within Warrant be registered in the name of, and delivered
to, the undersigned at the address stated below.
Dated:_____________ Name _____________________________________
(Print)
Address:______________________________________________________________________
_____________________________________
(Signature)
EXHIBIT C
_________
VOTING AGREEMENT
________________
VOTING AGREEMENT, made at New York, New York as of July 3, 1997, among
LANXIDE CORPORATION, a Delaware corporation (the "Company"), the stockholders of
the Company listed on SCHEDULE A annexed hereto (the "Stockholders"), and
BENTLEY J. BLUM, PAUL E. HANNESSON, DAVID MITCHELL, HERBERT COHEN and
KENNETH ADELMAN (collectively, in their capacities as such hereunder, the
"Proxyholder");
W I T N E S S E T H:
_ _ _ _ _ _ _ _ _ _
WHEREAS, in furtherance of the transactions contemplated by that certain
Securities Purchase Agreement dated July 3, 1997 by and between the Company and
Commodore Environmental Services, Inc. ("Commodore"), the Stockholders have
agreed to grant to the Proxyholder an irrevocable proxy through December 31,
1998 in respect of voting of (i) all of their respective shares of voting stock
of the Company which is set forth on Schedule A hereto, and (ii) any additional
shares of voting stock of the Company acquired by the Stockholders following the
date hereof and prior to December 31, 1998 (collectively, the "Shares"), in
accordance with the terms and conditions of this Agreement; and
WHEREAS, the Stockholders have agreed upon the composition of the
Proxyholder and upon the form of this Agreement; and
WHEREAS, the Proxyholder has consented to act under this Agreement for the
purposes herein provided;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. AGREEMENT. Copies of this Agreement, and of every agreement
supplemental hereto or amendatory hereof, shall be filed in the principal office
of the Company in Newark, Delaware and shall be open to the inspection of any
stockholder of the Company, daily during business hours.
2. GRANT OF PROXIES TO PROXYHOLDER.
(a) Simultaneous with the execution and delivery of this Agreement,
each of the Stockholders is executing and delivering to and in favor of the
Proxyholder an irrevocable proxy in respect of such Stockholder's Shares, in the
form of EXHIBIT A annexed hereto; it being expressly understood and agreed that
such proxy shall apply to (i) those Shares owned by such Stockholder as set
forth on SCHEDULE A annexed hereto, and (ii) any and all additional Shares which
such Stockholder may hereafter acquire while such proxy shall be in effect.
Notwithstanding the foregoing, with respect only to Marc S. Newkirk, this
Agreement and such proxy shall be limited to those Shares owned of record by
such person and listed on SCHEDULE A annexed hereto. Each such proxy shall be
irrevocable until December 31, 1998, and if any of such proxies shall,
subsequent to December 31, 1998, be revoked or terminated, then all of such
proxies shall, simultaneous therewith, be deemed to be revoked and terminated.
(b) So long as any proxy granted hereunder shall remain in effect in
accordance herewith, such proxy shall be binding upon any person(s) who acquires
any interest in any of the Shares which at any time are subject to such proxy.
3. MANNER OF VOTING.
With respect to all voting of Shares, and/or any written consents
granted in lieu of formal voting, the Proxyholder shall vote or give consent in
accordance with the direction of a majority of the members of the Proxyholder as
determined (i) at a meeting of such members duly called upon not less than two
(2) days' prior notice setting forth (to the extent known to the person(s)
giving such notice) the specific matters to be voted upon (at which meeting any
member or members of the Proxyholder may participate by conference telephone
call), or (ii) by written direction signed by a majority of the members of the
Proxyholder. In all such voting, the members of the Proxyholder are hereby
authorized to exercise their own judgment on all matters to be voted upon, and
none of such members shall have any personal liability to any Stockholder by
reason of the manner in which such member authorizes the voting of any shares
hereunder.
4. PROXYHOLDER.
(a) Any member of the Proxyholder may at any time resign by mailing
to the Stockholders (with a copy to Commodore and to all other members of the
Proxyholder) a written resignation, to take effect ten days thereafter or upon
the prior acceptance thereof. Furthermore, each of the Stockholders, the
Company, and each member of the Proxyholder hereby agrees that any member of the
Proxyholder may be removed at any time at the direction of the Board of
Directors of Commodore, which Board of Directors shall have the right to
designate the successor to any such member so removed. Upon the resignation,
death or permanent disability of any member of the Proxyholder, the Board of
Directors of Commodore shall promptly designate a successor member, but pending
such designation, the Proxyholder may continue to act hereunder by action of the
remaining members of the Proxyholder in accordance with paragraph 3 above.
(b) The rights, powers, and privileges of any successor individual(s)
constituting a part of the Proxyholder hereunder shall be possessed by such
successor with the same effect as though such successor had originally been a
party to this Agreement. The word "Proxyholder," as used in this Agreement,
means the initial Proxyholder named herein and each group of persons acting from
time to time as the Proxyholder hereunder.
5. TERM. This Agreement shall continue in effect until December 31,
1998, and shall continue thereafter unless and until any of the proxies granted
hereunder is revoked or terminated as provided in paragraph 2(a) above.
6. COMPENSATION AND REIMBURSEMENT OF PROXYHOLDER. The Proxyholder shall
serve without compensation. The Proxyholder shall have the right to incur and
pay such reasonable expenses and charges, and to employ and pay such agents and
attorneys as they may deem necessary and proper for carrying this Agreement into
effect, and shall be reimbursed therefor by the Company. Nothing herein
contained shall disqualify or incapacitate any member of the Proxyholder from
serving the Company or any of its subsidiaries as an officer of director or in
any other capacity, or from receiving compensation in any such capacity.
7. NOTICES.
(a) Unless otherwise in this Agreement specifically provided, any
notice or delivery to or communication with the Stockholders hereunder shall be
deemed to be sufficiently given or made if sent by postpaid first class mail or
recognized overnight courier service addressed to such Stockholders at their
respective addresses appearing on the transfer books of the Company. Every
notice so given shall be effective, whether or not received, and the date of
mailing or transmittal shall be the date such notice is deemed given for all
purposes.
(b) Any notice to the Proxyholder hereunder shall be given in like
manner to the Proxyholder at c/o Bentley J. Blum, 150 East 58th Street, Suite
3400, New York, New York 10155 or to such other address as may from time to time
be provided by notice from the Proxyholder to the Stockholders.
8. GENERAL.
(a) Neither this Agreement nor any of the terms or conditions hereof
may be waived, amended or modified except by means of a written instrument duly
executed by the party to be charged therewith. Any waiver or amendment shall
only be applicable in the specific instance, and shall not constitute or be
construed as a waiver or amendment in any other or subsequent instance. No
failure or delay on the part of any party in respect of any enforcement of
obligations hereunder shall in any manner affect such party's right to seek or
effect enforcement at any other time or in respect of any other required
performance.
(b) Neither this Agreement nor any rights or obligations hereunder
may be assigned by any party except as expressly provided herein.
(c) The captions and paragraph headings used in this Agreement are
for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
(d) This Agreement, and all matters or disputes relating to the
validity, construction, performance or enforcement hereof, shall be governed,
construed and controlled by and under the laws of the State of Delaware.
(e) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns.
(f) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original hereof, but all of which
together shall constitute one and the same instrument.
(g) This Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter.
(h) This Agreement is intended for the sole and exclusive benefit of
the parties hereto and their respective heirs, executors, administrators,
personal representatives, successors and permitted assigns, and no other person
or entity shall have any right to rely on this Agreement or to claim or derive
any benefit herefrom absent the express written consent of the party to be
charged with such reliance or benefit.
(i) If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require; and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of this 3rd day of July 1997.
LANXIDE CORPORATION
By:/s/ Marc S. Newkirk
_____________________________
Marc S. Newkirk, President
STOCKHOLDERS:
/s/ Bentley J. Blum
________________________________
Bentley J. Blum
/s/ Laura Utley
________________________________
Laura Utley
/s/ Samuel Blum
________________________________
Samuel Blum
/s/ Suzanne Hannesson
________________________________
Suzanne Hannesson
/s/ Paul E. Hannesson
________________________________
Paul E. Hannesson
/s/ Marc S. Newkirk
________________________________
Marc S. Newkirk
/s/ Jon Paul Hannesson
_________________________________
Jon Paul Hannesson
PROXYHOLDER:
/s/ Bentley J. Blum
________________________________
Bentley J. Blum
/s/ Paul E. Hannesson
________________________________
Paul E. Hannesson
/s/ David Mitchell
________________________________
David Mitchell
/s/ Herbert Cohen
________________________________
Herbert Cohen
/s/ Kenneth Adelman
________________________________
Kenneth Adelman
SCHEDULE A
Stockholder Shares Now Owned
___________ ________________
Bentley J. Blum 540,370
Laura Utley 34,216
Samuel Blum 27,000
Suzanne Hannesson 13,890
Paul E. Hannesson 13,890
Marc S. Newkirk 33,000
Jon Paul Hannesson 1,963
-------
TOTAL 664,329
=======
EXHIBIT A
PROXY
_____
The undersigned hereby constitutes and appoints Bentley J. Blum, Paul E.
Hannesson, David Mitchell, Herbert Cohen and Kenneth Adelman, as Proxyholder
under that certain Voting Agreement dated as of July 3, 1997 (the "Voting
Agreement"), with full power of substitution as provided in such Voting
Agreement, proxy for the undersigned to vote and/or grant consents with respect
to all shares of the voting capital stock of Lanxide Corporation owned of record
on the date hereof and/or hereafter acquired by the undersigned from time to
time, all according to the number of votes that the undersigned could cast and
with all powers that the undersigned would have if then voting or granting a
stockholder's consent personally, with respect to the election of directors
and/or any and all other matters of business submitted for the vote or consent
of stockholders of Lanxide Corporation.
Pursuant to the Voting Agreement, this proxy is coupled with an interest
and shall be irrevocable through December 31, 1998, and shall be binding upon
any person acquiring any interest in any voting stock of Lanxide Corporation at
any time owned by the undersigned while this proxy remains in effect.
Dated: July 3, 1997
/s/ Marc S. Newkirk
________________________________
Printed Name: Marc S. Newkirk
__________________________
PROXY
_____
The undersigned hereby constitutes and appoints Bentley J. Blum, Paul E.
Hannesson, David Mitchell, Herbert Cohen and Kenneth Adelman, as Proxyholder
under that certain Voting Agreement dated as of July 3, 1997 (the "Voting
Agreement"), with full power of substitution as provided in such Voting
Agreement, proxy for the undersigned to vote and/or grant consents with respect
to all shares of the voting capital stock of Lanxide Corporation owned of record
on the date hereof and/or hereafter acquired by the undersigned from time to
time, all according to the number of votes that the undersigned could cast and
with all powers that the undersigned would have if then voting or granting a
stockholder's consent personally, with respect to the election of directors
and/or any and all other matters of business submitted for the vote or consent
of stockholders of Lanxide Corporation.
Pursuant to the Voting Agreement, this proxy is coupled with an interest
and shall be irrevocable through December 31, 1998, and shall be binding upon
any person acquiring any interest in any voting stock of Lanxide Corporation at
any time owned by the undersigned while this proxy remains in effect.
Dated: July 3, 1997
/s/ Suzanne Hannesson
________________________________
Printed Name: Suzanne Hannesson
__________________________
PROXY
_____
The undersigned hereby constitutes and appoints Bentley J. Blum, Paul E.
Hannesson, David Mitchell, Herbert Cohen and Kenneth Adelman, as Proxyholder
under that certain Voting Agreement dated as of July 3, 1997 (the "Voting
Agreement"), with full power of substitution as provided in such Voting
Agreement, proxy for the undersigned to vote and/or grant consents with respect
to all shares of the voting capital stock of Lanxide Corporation owned of record
on the date hereof and/or hereafter acquired by the undersigned from time to
time, all according to the number of votes that the undersigned could cast and
with all powers that the undersigned would have if then voting or granting a
stockholder's consent personally, with respect to the election of directors
and/or any and all other matters of business submitted for the vote or consent
of stockholders of Lanxide Corporation.
Pursuant to the Voting Agreement, this proxy is coupled with an interest
and shall be irrevocable through December 31, 1998, and shall be binding upon
any person acquiring any interest in any voting stock of Lanxide Corporation at
any time owned by the undersigned while this proxy remains in effect.
Dated: July 3, 1997
/s/ Paul Hannesson
________________________________
Printed Name: Paul Hannesson
__________________________
PROXY
_____
The undersigned hereby constitutes and appoints Bentley J. Blum, Paul E.
Hannesson, David Mitchell, Herbert Cohen and Kenneth Adelman, as Proxyholder
under that certain Voting Agreement dated as of July 3, 1997 (the "Voting
Agreement"), with full power of substitution as provided in such Voting
Agreement, proxy for the undersigned to vote and/or grant consents with respect
to all shares of the voting capital stock of Lanxide Corporation owned of record
on the date hereof and/or hereafter acquired by the undersigned from time to
time, all according to the number of votes that the undersigned could cast and
with all powers that the undersigned would have if then voting or granting a
stockholder's consent personally, with respect to the election of directors
and/or any and all other matters of business submitted for the vote or consent
of stockholders of Lanxide Corporation.
Pursuant to the Voting Agreement, this proxy is coupled with an interest
and shall be irrevocable through December 31, 1998, and shall be binding upon
any person acquiring any interest in any voting stock of Lanxide Corporation at
any time owned by the undersigned while this proxy remains in effect.
Dated: July 3, 1997
/s/ Jon Paul Hannesson
________________________________
Printed Name: Jon Paul Hannesson
__________________________
PROXY
_____
The undersigned hereby constitutes and appoints Bentley J. Blum, Paul E.
Hannesson, David Mitchell, Herbert Cohen and Kenneth Adelman, as Proxyholder
under that certain Voting Agreement dated as of July 3, 1997 (the "Voting
Agreement"), with full power of substitution as provided in such Voting
Agreement, proxy for the undersigned to vote and/or grant consents with respect
to all shares of the voting capital stock of Lanxide Corporation owned of record
on the date hereof and/or hereafter acquired by the undersigned from time to
time, all according to the number of votes that the undersigned could cast and
with all powers that the undersigned would have if then voting or granting a
stockholder's consent personally, with respect to the election of directors
and/or any and all other matters of business submitted for the vote or consent
of stockholders of Lanxide Corporation.
Pursuant to the Voting Agreement, this proxy is coupled with an interest
and shall be irrevocable through December 31, 1998, and shall be binding upon
any person acquiring any interest in any voting stock of Lanxide Corporation at
any time owned by the undersigned while this proxy remains in effect.
Dated: July 3, 1997
/s/ Bentley J. Blum
________________________________
Printed Name: Bentley J. Blum
__________________________
PROXY
_____
The undersigned hereby constitutes and appoints Bentley J. Blum, Paul E.
Hannesson, David Mitchell, Herbert Cohen and Kenneth Adelman, as Proxyholder
under that certain Voting Agreement dated as of July 3, 1997 (the "Voting
Agreement"), with full power of substitution as provided in such Voting
Agreement, proxy for the undersigned to vote and/or grant consents with respect
to all shares of the voting capital stock of Lanxide Corporation owned of record
on the date hereof and/or hereafter acquired by the undersigned from time to
time, all according to the number of votes that the undersigned could cast and
with all powers that the undersigned would have if then voting or granting a
stockholder's consent personally, with respect to the election of directors
and/or any and all other matters of business submitted for the vote or consent
of stockholders of Lanxide Corporation.
Pursuant to the Voting Agreement, this proxy is coupled with an interest
and shall be irrevocable through December 31, 1998, and shall be binding upon
any person acquiring any interest in any voting stock of Lanxide Corporation at
any time owned by the undersigned while this proxy remains in effect.
Dated: July 3, 1997
/s/ Laura Utley
________________________________
Printed Name: Laura Utley
__________________________
PROXY
_____
The undersigned hereby constitutes and appoints Bentley J. Blum, Paul E.
Hannesson, David Mitchell, Herbert Cohen and Kenneth Adelman, as Proxyholder
under that certain Voting Agreement dated as of July 3, 1997 (the "Voting
Agreement"), with full power of substitution as provided in such Voting
Agreement, proxy for the undersigned to vote and/or grant consents with respect
to all shares of the voting capital stock of Lanxide Corporation owned of record
on the date hereof and/or hereafter acquired by the undersigned from time to
time, all according to the number of votes that the undersigned could cast and
with all powers that the undersigned would have if then voting or granting a
stockholder's consent personally, with respect to the election of directors
and/or any and all other matters of business submitted for the vote or consent
of stockholders of Lanxide Corporation.
Pursuant to the Voting Agreement, this proxy is coupled with an interest
and shall be irrevocable through December 31, 1998, and shall be binding upon
any person acquiring any interest in any voting stock of Lanxide Corporation at
any time owned by the undersigned while this proxy remains in effect.
Dated: July 3, 1997
/s/ Samuel Blum
________________________________
Printed Name: Samuel Blum
_________________________
EXHIBIT 99.1
LANXIDE TAKES ON INVESTMENT FROM
COMMODORE ENVIRONMENTAL SERVICES, INC.
NEWARK, DELAWARE . . . July 7, 1997 -- Marc S. Newkirk, President and CEO
of Lanxide Corporation (OTC: LNXI), today announced that the Company has entered
into a Securities Purchase Agreement with Commodore Environmental Services, Inc.
(OTC: COES) for the purchase of up to $25 million of preferred stock, under
which Commodore has obtained effective control of the Company. The Agreement
provides for an initial investment in preferred stock of the Company of
$2 million, and a subsequent investment, at the option of Commodore, of
$8.5 million in preferred stock by August 27, 1997, of which $4.5 million
represents the cancellation of existing debt. Commodore also received a warrant
to purchase up to $14.5 million of preferred stock of the Company by July 3,
2000. The preferred stock issued to Commodore can be converted into the
Company's common stock at $7.41 per share. As a result of this transaction, the
merger discussions between Lanxide and Commodore previously announced have been
terminated.
Mr. Newkirk commented, "We are just now at a stage where our commercial
businesses are beginning to gain momentum. The influx of resources from
Commodore at this critical point in time, coupled with the very large market for
products of our technology, should enable us to realize accelerating growth for
years to come."
Commodore Environmental Services, Inc. is commercializing materials process
technologies that destroy hazardous materials, or separate and recover dissolved
materials from liquid or gas streams. On June 28, 1996, Commodore Environmental
Services' subsidiary, Commodore Applied Technologies, Inc. (AMEX: CXI),
successfully completed its initial public offering of common stock and
redeemable warrants, raising gross proceeds of $35,075,000. Commodore Applied
Technologies, Inc. is commercializing its patented solvated electron process,
which has been awarded the U.S. EPA's first ever portable, non-thermal,
nationwide process for PCB destruction. This process also destroys chemical
warfare agents and concentrates certain radioactive waste for more effective
disposal. Commodore Environmental Services, Inc. retains 69% ownership of
Commodore Applied Technologies, Inc. On April 8, 1997, Commodore Applied
Technologies, Inc.'s subsidiary, Commodore Separation Technologies, Inc.,
successfully completed its initial public offering raising gross proceeds of
$13,741,500. Commodore Separation Technologies, Inc. is commercializing its
patent pending supported liquid membrane process, focusing initially on the
plating industry.
Lanxide Corporation was founded in 1983 to develop and commercialize
products based upon a novel approach to the fabrication of ceramic-reinforced
products. Lanxide's patented technology has enabled it to engineer a new class
of high-performance materials, LANXIDE(TM) composites, which offer superior
combinations of properties tailored to meet specific customer needs.
LANXIDE(TM) composites combine many of the features of ceramics and metals,
including combinations of strength, damage tolerance, shape versatility,
hardness, stiffness, chemical stability and temperature tolerance previously
unavailable in a single class of materials. Lanxide Corporation has developed
proprietary processes enabling the manufacture of products in a wide range of
sizes and complex shapes and possessing a broad spectrum of performance
characteristics. Lanxide's technology is being commercialized through selective
licensing of the technology, market-focused joint ventures, and subsidiary
companies using its own resources. These business activities have generated
product adoptions in a diverse array of industries and markets including
automotive, aerospace, electronics, electric power generation, mining and
sporting goods.
For further details, please contact R. Michael Rice at Lanxide Corporation,
1300 Marrows Road, P.O. Box 6077, Newark, DE 19714-6077, Tel. (302) 456-6219,
Fax (302) 454-1712 and Melissa C. Berkowitz at Commodore Environmental Services,
Inc., 150 East 58th Street, Suite 3400, New York, NY 10155,
Tel. (212) 308-5800, Fax (212) 753-0731.
