<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 17, 1998
REGISTRATION NO. 333-47795
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
POST-EFFECTIVE AMENDMENT NO. 1*
ON
FORM S-3
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
SYBRON INTERNATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
----------------
WISCONSIN 22-2849508
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
411 EAST WISCONSIN AVENUE
MILWAUKEE, WISCONSIN 53202
(414) 274-6600
(Address, including ZIP Code, and telephone number,
including area code, of Registrant's principal executive offices)
R. JEFFREY HARRIS
VICE PRESIDENT - GENERAL COUNSEL AND SECRETARY
SYBRON INTERNATIONAL CORPORATION
411 EAST WISCONSIN AVENUE
MILWAUKEE, WI 53202
(414) 274-6600
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
----------------
COPIES TO:
BRUCE C. DAVIDSON EDWARD T. SWAN, P.C.
QUARLES & BRADY KIRKLAND & ELLIS
411 EAST WISCONSIN AVENUE 200 EAST RANDOLPH DRIVE
MILWAUKEE, WISCONSIN 53202 CHICAGO, ILLINOIS 60601
(414) 277-5000 (312) 861-2000
================================================================================
*THIS POST-EFFECTIVE AMENDMENT NO. 1 RELATES TO THE POSSIBLE PUBLIC REOFFERING
OF THE SECURITIES REGISTERED BY THE REGISTRATION STATEMENT BY PERSONS WHO MAY BE
DEEMED TO BE UNDERWRITERS THROUGH THE USE OF THE REOFFERING PROSPECTUS INCLUDED
IN THIS POST-EFFECTIVE AMENDMENT NO. 1, AS CONTEMPLATED BY NOTE (5) TO THE FEE
TABLE ON THE COVER PAGE OF THE REGISTRATION STATEMENT AS FILED ON MARCH 11,
1998.
<PAGE> 2
INFORMATION HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A POST-EFFECTIVE
AMENDMENT TO THE REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE
SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE POST-EFFECTIVE
AMENDMENT TO THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL
NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL
THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION
UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
SUBJECT TO COMPLETION, DATED JULY 17, 1998
2,891,247 SHARES
SYBRON INTERNATIONAL CORPORATION
COMMON STOCK
Certain shareholders (the "Selling Shareholders") of Sybron International
Corporation, a Wisconsin corporation ("Sybron" or the "Company"), may severally
offer hereunder up to 2,891,247 shares of Common Stock, par value $0.01 per
share ("Common Stock"), of the Company at such time or times and on such terms
as the Selling Shareholders may determine in light of the then-current market
conditions and other factors. The Company will not receive any of the proceeds
from the sale of the shares being sold by the Selling Shareholders. See "Use of
Proceeds and Selling Shareholders."
The shares of Common Stock to which this Prospectus relates (the "Shares")
may be sold by the Selling Shareholders to or through dealers or brokers or
other agents, or directly to one or more purchasers, in market transactions or
privately-negotiated transactions at market-based or negotiated prices. The
Company will pay all expenses related to the registration of the Shares. The
Selling Shareholders, however, will bear the cost of all brokerage commissions
and discounts incurred in connection with the sale of the Shares. See "Plan of
Distribution."
The Shares were issued in connection with the Company's acquisition of LRS
Acquisition Corp., a Delaware corporation ("LRS"), through the merger of a
subsidiary of the Company into LRS on April 9, 1998, with the result that LRS
became a wholly owned subsidiary of the Company. LRS, through its wholly owned
subsidiaries (principally "A" Company Orthodontics) (""A" Company"), designs,
manufactures, markets and distributes orthodontic appliances and related
products. See "Selling Shareholders."
The Common Stock is listed and traded on the New York Stock Exchange (the
"NYSE") under the symbol "SYB". On ____________, 1998, the last reported sale
price of the Common Stock on the NYSE was $________ per share.
_________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_________________
THE DATE OF THIS PROSPECTUS IS _________, 1998.
<PAGE> 3
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR THE SELLING SHAREHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OFFERED
HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy or information statements and other information
with the Securities and Exchange Commission (the "SEC"). Such reports,
statements and other information field with the SEC can be inspected and copied
at the public reference facilities maintained by the SEC at 450 Fifth Street,
N.W., Washington D.C. 20549, and at the SEC's regional offices located at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661
and 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material may also be obtained by mail from the Public Reference Section of the
SEC at 450 Fifth Street, N.W., Washington D.C. 20549, at prescribed rates. The
Company has been an electronic filer with the SEC Since May 1996. The SEC
maintains an Internet site on the World Wide Web at <http://www.sec.gov> that
contains reports, proxy and information statements and other information
regarding registrants that file electronically. The Common Stock (symbol "SYB")
is listed on the NYSE, and such reports, statements and other information
concerning the Company should also be available for inspection at the offices of
the NYSE, 20 Broad Street, New York, New York 10005.
This Prospectus, which constitutes a part of the registration statement
(File No. 333-47795), as amended (the "Registration Statement"), filed by the
Company with the SEC under the Securities Act of 1933, as amended (the
"Securities Act"), omits certain of the information set forth in the
Registration Statement. Reference is hereby made to the Registration Statement
and to the exhibits thereto for further information with respect to the Company
and the securities offered hereby. The Registration Statement is available for
inspection and copying as set forth above. Statements contained in this
Prospectus or in any document incorporated by reference in this Prospectus as to
the contents of any contract or other document referred to herein or therein are
not necessarily complete, and, in each instance, reference is made to the copy
of such contract or other document filed as an exhibit to the Registration
Statement or such other document, each such statement being qualified in all
respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
This Prospectus incorporates by reference documents relating to the Company
which are not presented herein or delivered herewith. The Company will provide
without charge to each person, including any beneficial owner, to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy (without exhibits, except those specifically incorporated by reference) of
any and all of the documents which are incorporated herein by reference.
Requests for such documents should be directed to the Company at its principal
executive offices, at 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202,
Attention: Tricia Mintzlaff, Investor Relations (telephone: (414) 274-6600).
The following document(s) previously filed by the Company with the SEC
pursuant to the Exchange Act (File No. 1-11091) are incorporated in this
Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year ended
September 30, 1997 (which incorporates certain portions of the Company's
Proxy Statement dated December 23, 1997 for its Annual Meeting of
Shareholders on January 30, 1998);
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2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1997 (including Amendment No. 1 thereto on Form 10-Q/A)
and March 31, 1998;
3. The Company's Current Report on Form 8-K dated July __, 1998; and
4. The Company's Current Report on Form 8-K dated July 13, 1998 and
the description of the Common Stock contained therein, which updates and
supersedes the description of the Common Stock contained in the Company's
Registration Statement on Form 8-B dated January 13, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the termination of
this offering shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of filing of such documents. The information relating
to the Company contained in this Prospectus does not purport to be comprehensive
and should be read together with the information in the documents incorporated
by reference herein.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
FORWARD-LOOKING STATEMENTS; CAUTIONARY FACTORS. THIS PROSPECTUS AND THE
DOCUMENTS INCORPORATED BY REFERENCE HEREIN MAY CONTAIN FORWARD-LOOKING
STATEMENTS MADE BY OR ON BEHALF OF THE COMPANY. READERS ARE CAUTIONED NOT TO
PLACE UNDUE RELIANCE ON THESE FORWARD-LOOKING STATEMENTS. SUCH STATEMENTS ARE
BASED UPON MANAGEMENT'S EXPECTATIONS AT THE TIME MADE AND ARE SUBJECT TO RISKS
AND UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM
THOSE PROJECTED IN THE STATEMENTS. THE WORDS "ANTICIPATE", "BELIEVE",
"ESTIMATE", "EXPECT", "PROJECT", "OBJECTIVE" AND SIMILAR EXPRESSIONS ARE
INTENDED TO IDENTIFY FORWARD-LOOKING STATEMENTS. IN ADDITION TO THE ASSUMPTIONS
AND OTHER FACTORS REFERRED TO SPECIFICALLY IN CONNECTION WITH SUCH STATEMENTS,
FACTORS THAT COULD CAUSE THE COMPANY'S ACTUAL RESULTS TO DIFFER MATERIALLY FROM
THOSE CONTEMPLATED IN THE FORWARD-LOOKING STATEMENTS INCLUDE FACTORS DESCRIBED
UNDER THE CAPTION "CAUTIONARY FACTORS" IN THE COMPANY DOCUMENTS INCORPORATED
HEREIN BY REFERENCE.
THE COMPANY
The subsidiaries of the Company are leading manufacturers of value-added
products for the laboratory and professional dental and orthodontic markets in
the United States and abroad. Sybron's laboratory subsidiaries provide plastic
labware, microscope slides, disposable diagnostic products, consumables,
temperature control apparatus and water purification systems to industrial,
academic, clinical, governmental and biotechnology laboratories. Sybron's dental
and orthodontic subsidiaries provide a diversified line of consumable products
to dentists and orthodontic appliances and related products to orthodontists.
The Company has been pursuing a growth strategy designed to increase sales and
enhance operating margins. Elements of that strategy include emphasis on
acquisitions, product line extensions, new product introductions and
international growth. The Company's net sales have increased from $383 million
in the fiscal year ended September 30, 1992 to $795 million in the fiscal year
ended September 30, 1997. In fiscal year 1997, the Company's sales outside the
United States represented approximately 32% of net sales.
In May 1998, the Company's laboratory subsidiaries were realigned under
Sybron Laboratory Products Corporation ("SLPC"). The primary laboratory
subsidiaries under SLPC are Nalge Nunc International Corporation ("NNI"), Erie
Scientific Company ("Erie") and Barnstead Thermolyne Corporation
("Barnstead/Thermolyne"). NNI develops, manufactures, and markets labware, life
sciences and process technologies products. Offerings include reusable and
disposable plastic labware, cell and tissue culture products, high quality
bio-pharmaceutical packaging, filtration products, and industrial products used
in fluid processing such as plastic tubing, sanitary tubing and fittings. Erie
develops, manufactures, and markets products for diagnostics and research,
histology, microbiology, and clinical
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<PAGE> 5
and industrial applications. These products include liquid standards and
reagents, stains, diagnostic tests, microscope slides and other glass products.
Barnstead/Thermolyne develops, manufactures and markets precision laboratory
equipment consisting of heating, stirring, measuring, sterilizing, analytical
and temperature control apparatus, and water purification systems.
Sybron's dental and orthodontic subsidiaries include "A" Company as well as
Kerr Corporation ("Kerr") and Ormco Corporation ("Ormco"), which are
subsidiaries of Sybron Dental Specialties, Inc. Kerr develops, manufactures and
markets a broad range of consumable products for use in restorative, prosthetic,
and endodontic dentistry. Ormco and "A" Company develop, manufacture and market
a broad line of orthodontic appliances including bands, brackets, wire,
adhesives, and ancillary equipment used during the course of orthodontic
treatment.
The description of Sybron's business included herein and in the documents
incorporated by reference herein may contain statements that could be deemed to
be forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Those statements concern, among other things,
Sybron's intent, belief or current expectations with respect to operating and
growth strategies, capital expenditures, financing or other matters, regulatory
matters pertaining to Sybron specifically and the industry in general, industry
trends, competition, risks attendant to foreign operations, reliance on key
distributors, environmental matters and other factors affecting Sybron's
financial condition or results of operations. Such forward-looking statements
involve certain risks and uncertainties, many of which are beyond Sybron's
control, that could cause actual results to differ materially from those
contemplated in the forward-looking statements. Factors which could cause or
contribute to such differences include, but are not limited to, those discussed
in connection with such statements as well as those described in the sections
entitled "Cautionary Factors" in the Sybron documents incorporated herein by
reference. See "Incorporation of Certain Documents by Reference."
Additional information concerning Sybron is included in the Sybron
documents filed with the SEC which are incorporated by reference herein. See
"Incorporation of Certain Documents by Reference."
The Company's principal executive offices are located at 411 East Wisconsin
Avenue, Milwaukee, Wisconsin 53202; its telephone number is (414) 274-6600.
USE OF PROCEEDS
The Company will not receive any of the proceeds from any sale of the
Shares by the Selling Shareholders hereunder. The Company will pay all expenses
related to the registration of the Shares. See "Selling Shareholders" and "Plan
of Distribution."
SELLING SHAREHOLDERS
The Shares offered hereby were acquired by the Selling Shareholders
pursuant to an Agreement and Plan of Reorganization, dated as of January 23,
1998 (the "Reorganization Agreement"), by and among the Company, Normandy
Acquisition Co. ("Acquisition"), LRS Acquisition Corp. ("LRS") and Liberty
Partners Holdings 5, L.L.C. ("Liberty"). The Reorganization Agreement provided
for the acquisition of LRS by the Company through the merger of Acquisition, a
wholly owned subsidiary of the Company, with and into LRS (the "Merger"). The
Merger was consummated on April 9, 1998 (the "Effective Time of Merger"),
whereupon LRS became a wholly owned subsidiary of the Company. In the Merger,
each share of the issued and outstanding capital stock of LRS, an outstanding
warrant held by Liberty to purchase LRS capital stock, and outstanding options
for such capital stock were converted into or exchanged for Common Stock of the
Company based on the applicable exchange ratios determined pursuant to the
Reorganization Agreement, resulting in the issuance of an aggregate of 3,215,982
shares of Common Stock (the "Merger Shares").
The Merger Shares were registered by the Registration Statement (on Form
S-4) for issuance pursuant to the Reorganization Agreement in accordance with
Rule 145 promulgated by the SEC under the Securities Act. Accordingly,
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<PAGE> 6
the Merger Shares are freely transferable under the Securities Act, except that
shares received by any person deemed to be an "affiliate" (as that term is used
in paragraphs (c) and (d) of Rule 145 under the Securities Act) of LRS for
purposes of Rule 145 (an "Affiliate") may not be resold except in transactions
permitted by Rule 145 or as otherwise permitted under the Securities Act. The
Selling Shareholders are the persons identified by LRS as its Affiliates. The
Shares to which this Prospectus relates are the Merger Shares issued to the
Selling Shareholders pursuant to the Reorganization Agreement.
It was a condition to the obligations of the Company to consummate the
Merger that each Affiliate deliver to the Company a letter (an "Affiliate
Letter") in which the Affiliate agreed with the Company (i) not to sell,
transfer or otherwise dispose of any of the Merger Shares issued to such
Affiliate, except pursuant to an effective registration statement or in
compliance with Rule 145 or another exemption from the registration requirements
of the Securities Act, and (ii) not to make any disposition or other reduction
of such person's risk relative to any stock of the Company or LRS during the
period (the "risk-sharing period") which commenced thirty (30) days prior to the
Effective Time of Merger and ended on July 20, 1998, when Sybron published
financial results covering at least 30 days of post-Merger combined operations.
REGISTRATION RIGHTS AGREEMENT
As contemplated by the Reorganization Agreement, in conjunction with the
closing of the Merger, the Company entered into a Registration Rights Agreement,
dated April 9, 1998 (the "Registration Rights Agreement"), with the Selling
Shareholders, as the Affiliates of LRS. In the Registration Rights Agreement,
Sybron agreed to register for resale, after the risk-sharing period had been
satisfied, the Shares received by the Affiliates in connection with the Merger.
The Post-Effective Amendment to the Registration Statement of which this
Prospectus is a part was filed to satisfy this obligation of the Company under
the Registration Rights Agreement. The Registration Rights Agreement is intended
to provide additional liquidity to the Affiliates of LRS during the period that
the conditions of Rule 145(d) continue to apply to the Shares, so as to permit
the Affiliates to sell their Shares either pursuant to Rule 145(d) or pursuant
to this Prospectus.
Under the Registration Rights Agreement, subject to the terms and
conditions thereof, the Company is obligated to keep the Registration Statement
effective to permit sales under this Prospectus until either April 9, 1999, one
year after the consummation of the Merger, or, if applicable, such shorter
period of time which shall terminate (i) when all Shares covered by the
Registration Statement have been sold, or (ii) on the date the resale
restrictions applicable to the Shares pursuant to Rule 145(d) expire or are
rescinded (the "Registration Term").
ESCROW AGREEMENT
Pursuant to the Reorganization Agreement, an Escrow Agreement, dated April
9, 1998 (the "Escrow Agreement"), was entered into by and among the Company,
State Street Bank and Trust Company (the "Escrow Agent"), Messrs. Michael
Kluger, Gordon Nye and Kenneth Rainin, as agents and attorneys-in-fact of the
former LRS securityholders (the "LRS Representatives"), Liberty and certain
securityholders of LRS (collectively, the "Holdback Participants"), pursuant to
which a portion of the Merger Shares received by each Holdback Participant will
be held in escrow to secure the indemnification obligations of LRS under the
Reorganization Agreement (the "Escrow Account"). The Holdback Participants
include all of the Selling Shareholders (the Affiliates of LRS) and certain
other key "insiders" as determined by the LRS Board of Directors prior to the
Merger.
Pursuant to the Escrow Agreement, the Holdback Participants deposited into
the Escrow Account a portion of their Shares having an aggregate value of
$6,300,000 (the "Escrow Shares"). The Escrow Account is intended to secure the
indemnification rights of the Company under the Reorganization Agreement and
provide the LRS Representatives (all of whom are LRS Affiliates and Selling
Shareholders) with a source for recovery of defense costs incurred in connection
with any third party claim.
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While their Escrow Shares are held in the Escrow Account, the Holdback
Participants are entitled to all rights of ownership thereof, including without
limitation the right to vote and sell such shares; provided, however, that upon
any sale of Escrow Shares the proceeds thereof must be deposited with the Escrow
Agent to be held as part of the Escrow Fund (as defined in the Escrow
Agreement). The Escrow Agreement provides that the LRS Representatives have the
sole right, in their discretion, to obtain the release of all or any portion of
the Escrow Shares then held in the Escrow Fund in order to effect the sale of
those Shares. In the Escrow Agreement, the Holdback Participants appointed the
LRS Representatives as their agents for purposes of effecting sales of the
Escrow Shares, provided that any sale made by the LRS Representatives must be
accomplished in accordance with the provisions of the Affiliate Letter executed
by each Holdback Participant and in accordance with the Registration Rights
Agreement. The Escrow Agreement also requires that any such sale be treated as a
sale of Escrow Shares by all Holdback Participants, to be allocated among such
Holdback Participants proportionately based on their respective contributions to
the Escrow Fund.
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<PAGE> 8
THE SELLING SHAREHOLDERS AND THE SHARES
Based upon information provided by the Selling Shareholders and
information relating to the Shares subject to the Registration Rights Agreement
and the Escrow Shares subject to the Escrow Agreement, the following table sets
forth information, as of July 8, 1998, with respect to (i) the aggregate number
of shares of Common Stock beneficially owned by each Selling Shareholder, (ii)
the number of Shares registered hereby that each Selling Shareholder may offer
and sell pursuant to this Prospectus (including the number of Escrow Shares),
and (iii) the number of shares of Common Stock each Selling Shareholder would
own if all of the Shares registered for resale hereunder were sold. Because the
Selling Shareholders may choose to sell all, or a portion, or none of the Shares
registered hereby at any time and from time to time after the date hereof and
during the Registration Term, the number of shares of Common Stock that each
Selling Shareholder shall retain upon completion of the offering to which this
Prospectus relates cannot be stated with any certainty.
<TABLE>
<CAPTION>
NUMBER OF
SHARES
BENEFICIALLY
NUMBER OF OWNED IF ALL
SHARES SHARES
BENEFICIALLY REGISTERED
OWNED NUMBER OF SHARES REGISTERED FOR HEREUNDER
SELLING SHAREHOLDERS PRIOR TO POTENTIAL RESALE HEREUNDER WERE SOLD
OFFERING(1)
- ----------------------------------------------------------------------------------------------------------------------------
NON-
ESCROW ESCROW
SHARES SHARES TOTAL
<S> <C> <C> <C> <C> <C>
Liberty Partners Holdings 5, 1,075,719 80,609 995,110 1,075,719 0
L.L.C.(2)(4)
Kenneth Rainin(3)(5) 1,114,309 83,538 1,030,771 1,114,309 0
Robert B. Stockman(3)(6) 294,013 22,035 271,978 294,013 0
William W. Crouse(3) 100,630 7,531 93,099 100,630 0
Gordon E. Nye(3) 84,003 6,299 77,704 84,003 0
Andrew J. Futey(3) 25,510 1,906 23,604 25,510 0
Charles Madsen(3) 15,854 1,185 14,669 15,854 0
David J. Milner(3) 14,622 1,092 13,530 14,622 0
Michael P. Oliver(3) 9,748 721 9,027 9,748 0
Richard W. Poinsett(3) 4,874 372 4,502 4,874 0
State Board of Administration of 151,965 11,413 140,552 151,965 0
Florida(4)
- ----------------------------------------------------------------------------------------------------------------------------
Total 2,891,247 216,701 2,674,546 2,891,247 0
</TABLE>
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(1) The number of shares of Common Stock owned by each Selling Shareholder
is less than 1% of the 100,829,368 shares of Common Stock outstanding
as of July 8, 1998, except for the following Selling Shareholders who
owned more than 1% of such outstanding shares: Liberty Partners
Holdings 5, L.L.C. ("Liberty") (1.07%) and Kenneth Rainin (1.11%)
(2) Liberty, a Delaware limited liability company, was organized for the
sole purpose of investing in LRS Common Stock and a warrant to purchase
shares of LRS Common Stock. The members of Liberty are (i) Liberty
Investments 5, Inc., a Delaware corporation which holds a 76.5% profits
interest in Liberty and is in turn wholly owned by the State Board of
Administration of Florida, and (ii) Liberty Investment Partners 5, a
Delaware general partnership which holds a 23.5% profits interest in
Liberty. Liberty Partners, L.P. a Delaware limited partnership, is the
sole manager of Liberty. Liberty Capital Partners, Inc., an investment
management firm, is the sole general partner of Liberty Partners, L.P.
and is the investment advisor to the State Board of Administration of
Florida. Certain individuals, including Michael J. Kluger and Peter E.
Bennett, who served as directors of LRS and "A" Company prior to the
Merger, are general partners of Liberty Investment Partners 5, limited
partners of Liberty Partners, L.P., and stockholders of Liberty Capital
Partners, Inc. Prior to the Merger, Liberty owned and held a warrant to
acquire an aggregate of 38% of the LRS Common Stock on a fully diluted
basis.
(3) Prior to the Merger, LRS and "A" Company had the same management. The
following Selling Shareholders held the indicated positions and offices
with LRS and "A" Company prior to the Merger: Kenneth Rainin, Director;
Robert B. Stockman, Director; William W. Crouse, Chairman of the Board;
Gordon E. Nye, Director, President and Chief Executive Officer; Andrew
J. Futey, Senior Vice President-Operations; Charles Madsen, Vice
President-North American Sales; David J. Milner, Vice
President-Finance; Michael P. Oliver, Vice President-Global Marketing;
and Richard W. Poinsett, Vice President-Quality Assurance and Research
& Development. As indicated in Note 2 above, Michael J. Kluger and
Peter E. Bennett were also directors of LRS and "A" Company. At the
Effective Time of Merger, the directors and officers of Acquisition
became the directors and officers of LRS and the Selling Shareholders
(and Messrs. Kluger and Bennett) resigned all of their positions with
LRS and "A" Company. Mr. Milner is providing transition services
following the Merger by managing the accounting group of "A" Company
and its facilities in San Diego, California, and Tijuana, Baja
California, Mexico. These services are expected to continue through
December 1998.
(4) Prior to the Merger, the State Board of Administration of Florida was
LRS' principal lender and owned all of the outstanding LRS Series A
Preferred Stock. In connection with the Merger, Sybron repaid all
outstanding indebtedness owed by LRS and its subsidiaries to the State
Board of Administration of Florida, after LRS used available cash to
reduce such indebtedness. The amount of such indebtedness so repaid,
including accrued interest, was approximately $32,287,313. As noted
above, the State Board of Administration of Florida, through its wholly
owned subsidiary Liberty Investments 5, Inc., holds a 76.5% profits
interest in Liberty and, accordingly, holds a 76.5% beneficial
ownership interest in the Shares held of record by Liberty.
(5) Prior to the Merger, Mr. Rainin beneficially owned approximately 30.9%
of the LRS Common Stock, on a fully diluted basis, and approximately
89.1% of the outstanding LRS Series B Preferred Stock.
(6) Prior to the Merger, Mr. Stockman beneficially owned approximately
10.3% of the LRS Common Stock, on a fully diluted basis.
PLAN OF DISTRIBUTION
The Selling Shareholders may sell any or all of the Shares to or through
dealers or brokers or other agents, or directly to one or more purchasers in
transactions on the NYSE, in the over-the-counter market or in privately
negotiated transactions, or in a combination of such transactions. Such
transactions may be effected by the Selling Shareholders at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices, or at fixed prices, which may be changed. Such
dealers, brokers or other agents may receive compensation in the form
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<PAGE> 10
of discounts, concessions or commissions from the Selling Shareholders and may
receive commissions from the purchasers of the Shares for whom they act as
agent. The Registration Rights Agreement provides that the Shares will be sold
by the Selling Shareholders only through routine brokerage transactions, to
dealers or in negotiated transactions, and does not provide for an underwritten
public offering or other special selling efforts.
Any Selling Shareholder and any dealer, broker or other agent selling
Shares for the Selling Shareholders or purchasing any Shares from a Selling
Shareholder for purposes of resale may be deemed to be an underwriter under the
Securities Act and any profit from the sale of the Shares or any compensation
received by such Selling Shareholder, dealer, broker or other agent may be
deemed underwriting compensation. Neither the Company nor the Selling
Shareholders can presently estimate the amount of such compensation. As of the
date hereof, the Company knows of no existing selling arrangements between any
Selling Shareholder and any other Selling Shareholder, dealer, broker or other
agent.
The Company will pay the expenses incurred in connection with the
preparation and filing of this Prospectus and the related amendment to the
Registration Statement, and will reimburse the Selling Shareholders for the
reasonable fees and disbursements of one counsel mutually chosen by the Selling
Shareholders in connection with the registration of the Shares for sale by the
Selling Shareholders pursuant to this Prospectus. The Company, however, will not
pay for any expenses, fees, commissions or discounts of dealers or agents, or
other selling expenses, which will be paid by the Selling Shareholders.
In the Registration Rights Agreement, the Company has agreed to indemnify
each Selling Shareholder and, if applicable, each director and officer of such
Selling Shareholder (and any person who controls such Selling Shareholder within
the meaning of Section 15 of the Securities Act) against certain liabilities,
including liabilities under the Securities Act, or to contribute to payments
which such indemnified persons may be required to make in respect thereto. Under
agreements which may be entered into by the Selling Shareholders, dealers and
agents who participate in the distribution of the Shares may be entitled to
similar indemnification or contribution by the Selling Shareholders. Dealers and
agents may be customers of, engage in transactions with or perform services for
the Company, its affiliates or the Selling Shareholders in the ordinary course
of business.
Under certain rules and regulations under the Exchange Act, if applicable,
any person engaged in a "distribution" of the Shares within the meaning of such
rules and regulations may not simultaneously engage in market activities with
respect to shares of Common Stock for the period beginning one business day
prior to the determination of the offering price and ending upon completion of
the Selling Shareholder's participation in the distribution. In addition, and
without limiting the foregoing, the Selling Shareholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including, without limitation, Regulation M, which provisions may
limit the timing of purchases and sales of Common Stock by the Selling
Shareholders.
In addition to or in lieu of sales of the Shares pursuant to this
Prospectus, the Selling Shareholders may sell their Shares in accordance with
the resale restrictions of Rule 145 under the Securities Act, as described
above. See "Selling Shareholders."
EXPERTS
The consolidated financial statements and schedule of Sybron International
Corporation incorporated in this Prospectus by reference to the Company's Annual
Report on Form 10-K for the year ended September 30, 1997 have been so
incorporated in reliance on the reports of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
Any financial statements hereafter incorporated by reference in the
Registration Statement that have been audited and are the subject of a report by
independent accountants will be incorporated herein by reference in reliance
upon such reports and upon the authority of such firms as experts in auditing
and accounting to the extent covered by the consents of such accountants filed
with the SEC.
9
<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses payable by the Registrant in
connection with this Amendment to the Registration Statement. All of such
expenses are estimates, other than the filing fee payable to the Securities and
Exchange Commission.
<TABLE>
<S> <C>
Filing Fee- Securities and Exchange Commission...............................$ None*
Fees and Expenses of Accountants............................................. 1,000
Fees and Expenses of Counsel................................................. 8,000
Miscellaneous Expenses....................................................... 1,000
--------
Total...............................................................$ 10,000
========
</TABLE>
- ------------------
*The Registration Statement (as originally filed on Form S-4) registered both
the securities offered in the business combination transaction and the resale of
those securities by affiliates; a filing fee having been paid with respect to
the securities offered in the business combination transaction, no separate
filing fee is assessed for the registration of resale transactions.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the Wisconsin Business Corporation Law
("WBCL"). Under Section 180.0851(1) of the WBCL, the Registrant is required to
indemnify a director or officer, to the extent such person is successful on the
merits or otherwise in the defense of a proceeding, for all reasonable expenses
incurred in the proceeding if such person was a party because he or she was a
director or officer of the Registrant. In all other cases, the Registrant is
required by Section 180.0851(2) of the WBCL to indemnify a director or officer
against liability incurred in a proceeding to which such person was a party
because he or she was an officer or director of the Registrant unless it is
determined that he or she breached or failed to perform a duty owed to the
Registrant and the breach or failure to perform constitutes: (i) a willful
failure to deal fairly with the Registrant or its shareholders in connection
with a matter in which the director or officer has a material conflict of
interest; (ii) a violation of criminal law, unless the director or officer had
reasonable cause to believe his or her conduct was lawful or no reasonable cause
to believe his or her conduct was unlawful; (iii) a transaction from which the
director or officer derived an improper personal profit; or (iv) willful
misconduct. Section 180.0858(1) of the WBCL provides that, subject to certain
limitations, the mandatory indemnification provisions do not preclude any
additional right to indemnification or allowance of expenses that a di rector or
officer may have under the Registrant's articles of incorporation, bylaws, a
written agreement or a resolution of the Board of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of the
State of Wisconsin to require or permit indemnification, allowance of expenses
and insurance to the extent required or permitted under Sections 180.0850 to
180.0858 of the WBCL for any liability incurred in connection with a proceeding
involving a federal or state statute, rule or regulation regulating the offer,
sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from a
breach of, or failure to perform, any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the four exceptions to mandatory
indemnification under Section 180.0851(2) referred to above.
II-1
<PAGE> 12
Under Section 180.0833 of the WBCL, directors of the Registrant against
whom claims are asserted with respect to the declaration of an improper dividend
or other distribution to shareholders to which they assented are entitled to
contribution from other directors who assented to such distribution and from
shareholders who knowingly accepted the improper distribution, as provided
therein.
Article VIII of the Registrant's Bylaws contains provisions that generally
parallel the indemnification provisions of the WBCL and cover certain procedural
matters not dealt with in the WBCL. Furthermore, certain officers of the
Registrant are also officers of subsidiaries of the Registrant and, as a result,
such officers may be entitled to indemnification pursuant to provisions of such
subsidiaries' governing corporate laws, articles of incorporation and bylaws.
The Registrant has also executed an indemnity agreement with each of its
directors and certain of its officers which provides certain indemnity rights to
such individuals.
Directors and officers of the Registrant are covered by directors' and
officers' liability insurance under which they are insured (subject to certain
exceptions and limitations specified in the policy) against expenses and
liabilities arising out of proceedings to which they are parties by reason of
being or having been directors or officers.
ITEM 16. EXHIBITS.
See Exhibit Index following Signatures page in this Amendment to the
Registration Statement, which Exhibit Index is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
II-2
<PAGE> 13
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(5) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is part of this Registration
Statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
(6) That every prospectus: (i) that is filed pursuant to paragraph (5)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Act and is used in connection with an offering of securities
subject to Rule 415, will be filed as a part of an amendment to the Registration
Statement and will not be used until such amendment is effective, and that, for
purposes of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions referred to in Item 15 of
this Registration Statement, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
WITHDRAWAL OF SHARES FROM REGISTRATION
Pursuant to the undertaking to that effect contained in this Registration
Statement, the Registrant hereby removes from registration the 1,451,018 shares
of Common Stock registered by the Registration Statement which were not issued
in the Merger.
II-3
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Milwaukee, State of Wisconsin, on July 17, 1998.
SYBRON INTERNATIONAL CORPORATION
(Registrant)
By: /s/ KENNETH F. YONTZ
------------------------------------
Kenneth F. Yontz
Chairman of the Board, President
and Chief Executive Officer
--------------------
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.*
SIGNATURE TITLE
/s/ KENNETH F. YONTZ Chairman of the Board, President
- -------------------------- and Chief Executive Officer and Director
Kenneth F. Yontz (Principal Executive Officer of the Registrant)
/s/ DENNIS BROWN Vice President - Finance, Chief Financial
- -------------------------- Officer and Treasurer (Principal Financial
Dennis Brown Officer and Principal Accounting Officer of
the Registrant)
S-1
<PAGE> 15
/s/ DON H. DAVIS, JR.** Director
- --------------------------
Don H. Davis, Jr.
/s/ CHRISTOPHER L. DOERR** Director
- --------------------------
Christopher L. Doerr
/s/ ROBERT B. HAAS** Director
- --------------------------
Robert B. Haas
/s/ THOMAS O. HICKS** Director
- --------------------------
Thomas O. Hicks
/s/ WILLIAM U. PARFET** Director
- --------------------------
William U. Parfet
/s/ JOE L. ROBY** Director
- --------------------------
Joe L. Roby
/s/ RICHARD W. VIESER** Director
- --------------------------
Richard W. Vieser
*Each of these signatures is affixed as of July 17, 1998.
**By /s/ R. JEFFREY HARRIS
---------------------------
R. Jeffrey Harris,
Attorney-in-Fact,
Pursuant to Power of
Attorney contained in
the Registration Statement
as filed on March 11, 1998
S-2
<PAGE> 16
SYBRON INTERNATIONAL CORPORATION
(THE "REGISTRANT")
(COMMISSION FILE NO. 1-11091)
EXHIBIT INDEX
TO
POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-3
TO
FORM S-4 REGISTRATION STATEMENT
(FILE NO. 333-47795)
(THE "REGISTRATION STATEMENT")
The following exhibits are filed with or incorporated by reference in this
Amendment to the Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN BY
NUMBER DESCRIPTION REFERENCE TO FILED HEREWITH
------ ----------- -------------- --------------
<S> <C> <C> <C>
2.1 Agreement and Plan of Appendix A to the Proxy
Reorganization, dated as of January Statement/ Prospectus dated
23, 1998, by and among Sybron March 12, 1998 contained in the
International Corporation, Normandy Registration Statement
Acquisition Co., LRS Acquisition
Corp. ("LRS") and Liberty Partners
Holdings 5, L.L.C.
3.1 Restated Articles of Incorporation of Exhibit 4.1 to the Registrant's
the Registrant Registration Statement on Form
S-8 (File No. 333-47015)
3.2 Bylaws of the Registrant Exhibit C to the 1994 Annual
Meeting Proxy Statement of
Sybron Corporation dated
December 17, 1993
4.1 Articles of Incorporation and Bylaws Exhibits 3.1 and 3.2 hereto
of the Registrant
5.1 Opinion of Quarles & Brady as to the Exhibit 5.1 to the Registration
legality of the securities being Statement
registered
23.1 Consent of KPMG Peat Marwick X
LLP, Registrant's independent
auditors
23.2 Consent of Quarles & Brady Contained in Exhibit 5.1
24.1 Powers of Attorney Contained on Signatures page in
the Registration Statement
</TABLE>
EI-1
<PAGE> 17
<TABLE>
<CAPTION>
EXHIBIT INCORPORATED HEREIN BY
NUMBER DESCRIPTION REFERENCE TO FILED HEREWITH
------ ----------- -------------- --------------
<S> <C> <C> <C>
99.1 Registration Rights Agreement, dated X
as of April 9, 1998, by and among
the Registrant and the Affiliates of LRS
identified on the signature page
thereto
99.2 Escrow Agreement, dated April 9, X
1998, by and among the Registrant,
State Street Bank and Trust Company,
as Escrow Agent, Michael Kluger,
Gordon Nye and Kenneth Rainin
(collectively, the "LRS
Representatives"), and each of the
Holdback Participants identified on
Schedule I thereto
</TABLE>
EI-2
<PAGE> 1
EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP
We consent to incorporation by reference in this Post-Effective Amendment
No. 1 on Form S-3 to the Registration Statement on Form S-4 of Sybron
International Corporation (File No. 333-47795) of our reports dated November 7,
1997, relating to the consolidated balance sheets of Sybron International
Corporation and subsidiaries as of September 30, 1997 and 1996, and the related
consolidated statements of income, shareholders' equity and cash flows for each
of the years in the three-year period ended September 30, 1997, and related
financial statement schedule, which reports appear in the September 30, 1997
Annual Report on Form 10-K of Sybron International Corporation. We also consent
to the references to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Milwaukee, Wisconsin
July 17, 1998
<PAGE> 1
EXHIBIT 99.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
this 9th day of April, 1998, by and among SYBRON INTERNATIONAL CORPORATION (the
"Company") and the AFFILIATES of LRS Acquisition Corp. ("LRS") who are
identified on the signature page to this Agreement (each an "Affiliate" for
purposes hereof and, collectively, the "Affiliates").
WHEREAS, pursuant to that certain Agreement and Plan of Reorganization
entered into by and among the Company, Normandy Acquisition Co., a wholly owned
subsidiary of the Company, LRS and Liberty Partners Holdings 5, L.L.C.
("Liberty") dated as of January 23, 1998 (the "Merger Agreement"), each share of
the issued and outstanding capital stock of LRS, an outstanding warrant held by
Liberty to purchase LRS capital stock and certain outstanding options for such
capital stock were converted into or exchanged for common stock of the Company,
par value $0.01 per share ("Common Stock"), registered on Form S-4 (the "S-4
Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), resulting in the issuance of an aggregate of 3,215,982 shares of Common
Stock (the "Merger Shares"); and
WHEREAS, pursuant to the Merger Agreement, each Affiliate received the
number of Merger Shares that is set forth opposite such Affiliate's name on the
signature page to this Agreement (collectively, the "Shares"); and
WHEREAS, the Merger Shares have been registered on the S-4 Registration
Statement for issuance pursuant to the Merger Agreement in accordance with Rule
145 ("Rule 145") promulgated by the Securities and Exchange Commission (the
"Commission") under the Act, with the result that the Shares are eligible for
resale by the Affiliates without registration under the Act in compliance with
the conditions set forth in Rule 145(d); and
WHEREAS, the Company has provided certain demand registration rights to the
Affiliates with respect to the Shares, as described in the Merger Agreement,
this Agreement and the Affiliate Letter delivered by each Affiliate pursuant to
the Merger Agreement, to provide additional liquidity during the period that the
conditions of Rule 145(d) continue to apply to the Shares; and
WHEREAS, concurrently with the execution of this Agreement the Affiliates
are exercising their demand registration rights and the Company has agreed to
register the Shares for resale as described in this Agreement (the "Demand
Registration").
NOW, THEREFORE, in consideration of the Recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
ARTICLE I
DEFINITIONS
In addition to the terms defined above, when used in this Agreement the
following terms shall have the meanings specified:
1.1 "Exchange Act" shall have the meaning set forth in Section 2.3(a).
1.2 "Law" shall mean any federal, state, local or other law, rule,
regulation or governmental requirement or restriction of any kind, including any
rules, regulations or orders promulgated thereunder and any final orders,
decrees, policies, consents or judgments of any regulatory agencies, courts or
other Persons.
1
<PAGE> 2
1.3 "Person" shall mean a natural person, corporation, trust, partnership,
limited liability company, association, governmental entity, agency or branch or
department thereof, or any other legal entity.
1.4 "Registration Expenses" shall have the meaning set forth in Section
2.5(a).
1.5 "Registration Shares" shall have the meanings set forth in Section
2.1(a).
1.6 "Registration Statement" shall mean, as the case may be, either a
post-effective amendment on Form S-3 to the S-4 Registration Statement or a
separate Form S-3 registration statement, each as described in Section
2.1(a)(i).
1.7 "Registration Term" shall have the meaning set forth in Section
2.3(f).
ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registration Rights.
(a) Effecting the Registration. Promptly following execution of
this Agreement, the Company shall use reasonable efforts to effect the Demand
Registration with respect to all of the Shares (the "Registration Shares"),
provided that:
(i) the Company shall be required to effect the Demand
Registration only if the Company is able to file a post-effective
amendment on Form S-3 to the S-4 Registration Statement to include a
reoffer prospectus covering resale of the Registration Shares or,
alternatively, if Form S-3 under the Act (or any comparable short-form
registration then in effect) is then available for use by the Company;
(ii) the Demand Registration shall not be required to become
effective at any time prior to the date the Company issues a public
earnings release reporting earnings that include at least 30 days worth of
results from the operations of the LRS business; and
(iii) the Company's obligation to effect the Demand Registration
pursuant to the provisions of this Agreement shall be deemed to have been
satisfied if after the filing of the Registration Statement, the failure of
such Registration Statement to become effective is due solely to the
actions or inactions of the Affiliates or if, once effective, the
effectiveness of the Registration Statement is withdrawn solely because of
an Affiliate's actions or inactions.
(b) Manner of Sale. The Registration Statement shall provide that the
Registration Shares will be sold by the Affiliates only through routine
brokerage transactions, to dealers or in negotiated transactions.
(c) No Piggyback Registration. The Registration Statement shall
not register any shares of Common Stock on behalf of any shareholders of the
Company other than the Affiliates.
2.2 Indemnity.
(a) Company Indemnification. The Company will indemnify and
hold harmless each Affiliate and, if applicable, each director and officer of
such Affiliate (and any Person who controls such Affiliate within the meaning of
Section 15 of the Act) against all claims, losses, damages, liabilities, actions
and expenses resulting from any untrue statement or alleged untrue statement of
a material fact contained in the prospectus or in the related Registration
Statement, or in any notification or the like, and from any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as the same may have been
based on information furnished in
2
<PAGE> 3
writing to the Company by such Affiliate expressly for use therein and used in
accordance with such writing. The Company agrees to reimburse each indemnified
Person for any legal or other expenses reasonably incurred in con nection with
investigating or defending any such loss, claim, damage, liability, action or
expense.
(b) Affiliate Indemnification. Each Affiliate, by acceptance of
the registration provisions provided herein, agrees to indemnify and hold
harmless the Company, its officers and directors (and any Person who controls
the Company within the meaning of Section 15 of the Act) against all claims,
losses, damages, liabilities, actions and expenses resulting from any untrue
statement or alleged untrue statement of a material fact furnished in writing
to the Company by that Affiliate expressly for use in connection with the
registration or qualification effected pursuant to this Agreement and used in
accordance with such writing and from any omission therefrom or alleged
omission therefrom of a material fact needed to be furnished in order to make
the information that was furnished, in light of the circumstances, not
misleading. Each Affiliate also agrees to reimburse each indemnified Person for
any legal or other expenses reasonably incurred in connection with
investigating or defending any such loss, claim, damage, liability, action or
expense. Notwithstanding anything in the foregoing to the contrary, the
aggregate amount for which each Affiliate may be liable pursuant to this
Section 2.2(b) and Section 2.2(c) shall not exceed the net proceeds to such
Affiliate resulting from the sale of such Affiliate's Registration Shares
pursuant to the Registration Statement.
(c) Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in
Sections 2.2(a) and 2.2(b) is applicable but for any reason is held to be
unenforceable, the indemnifying party shall contribute to the aggregate claims,
losses, damages, liabilities, actions and expenses of the nature contemplated
by such indemnity incurred by the indemnified party or parties in such
proportion as is just and equitable, taking into account the relative fault of
the parties, provided that no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any Person who is not guilty of such fraudulent
misrepresentation.
(d) Notice. Any Person entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying party of any claim with
respect to which indemnification is sought and (ii) unless a conflict of
interest exists between such indemnified and indemnifying parties with respect
to such claim, permit such indemnifying party to assume the defense of such
claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject to
liability for any additional legal fees of the indemnified party or for any
settlement made by the indemnified party without the indemnifying party's
consent. An indemnifying party which is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim.
2.3 Registration Covenants of the Company. The Company covenants
and agrees that the Company will use reasonable efforts to effect the Demand
Registration and cooperate in the sale of the Registration Shares to be
registered and, until expiration of the Registration Term, to:
(a) promptly prepare and file the Registration Statement (as
well as any necessary amendments or supplements thereto) with the Commission and
use reasonable efforts to cause such Registration Statement to become effective
in accordance with Section 2.1(a)(ii);
(b) furnish to the Affiliates sufficient copies of the
Registration Statement and any amendments or supplements thereto and any
prospectus forming a part thereof, which documents will be subject to the review
of counsel for the Affiliates prior to the filing thereof;
(c) notify the Affiliates, promptly after the Company shall
receive notice thereof, of the time when the Registration Statement becomes
effective or when any amendment or supplement to any prospectus forming a part
of the Registration Statement has been filed;
(d) notify the Affiliates promptly of any request by the
Commission for the amending or supplementing of the Registration Statement or
prospectus or for additional information;
3
<PAGE> 4
(e) advise the Affiliates after the Company shall receive notice
or obtain knowledge thereof of the issuance of any order by the Commission
suspending the effectiveness of the Registration Statement or amendment thereto
or of the initiation or threatening of any proceeding for that purpose, and
promptly use reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal promptly if such stop order should be issued;
(f) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus forming a part
thereof as may be necessary to keep the Registration Statement effective until
either the first anniversary of the execution of this Agreement or, if
applicable, such shorter period of time which shall terminate (i) when all
Shares covered by the Registration Statement have been sold, or (ii) on the date
the resale restrictions applicable to the Shares pursuant to Rule 145(d) expire
or are rescinded (the "Registration Term");
(g) furnish to the Affiliates such number of copies of the
Registration Statement, each amendment and supplement thereto, the prospectus
included in the Registration Statement (including each preliminary prospectus)
and such other documents as the Affiliates may reasonably request in order to
facilitate the disposition of the Registration Shares owned by the Affiliates;
(h) assist the Affiliates in satisfying their prospectus
delivery obligations by furnishing to any national securities exchange on which
the Registration Shares are then listed copies of the prospectus and each
amendment or supplement thereto in accordance with Rule 153 under the Act (or
any comparable rule then in existence);
(i) use reasonable efforts to register or qualify the
Registration Shares under such securities or blue sky Laws of such
jurisdictions as are mutually determined by the Company and the Affiliates and
do any and all other acts and things which may be reasonably necessary or
advisable to enable the Affiliates to consummate the disposition in such
jurisdictions of the Registration Shares; provided that nothing herein shall
require the Company to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction;
(j) notify the Affiliates, at any time when a prospectus relating
thereto is required to be delivered under the Act, of the happening of any
event as a result of which the Registration Statement contains an untrue
statement of a material fact or omits 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, not misleading, and, at the request of
an Affiliate, amend or supplement the Registration Statement so that the
Registration Statement will not contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading. The Affiliates acknowledge that any notice given by the
Company hereunder may constitute material nonpublic information and that
applicable securities Laws prohibit a Person who has material nonpublic
information about a company from purchasing or selling securities of such
company or from communicating such information to any other Person under
circumstances where it is reasonably foreseeable that such Person is likely to
purchase or sell such securities;
(k) cause all Registration Shares to continue to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(l) ensure the continued availability of a transfer agent and
registrar for all Registration Shares;
(m) make available for inspection by each Affiliate and any
attorney, accountant or other agent retained by such Affiliate, subject to the
Company's receipt of acceptable confidentiality agreements from the recipients
thereof, such financial and other records, pertinent corporate documents and
other properties and personnel of the Company as may be reasonably requested in
connection with the Registration Statement; and
(n) use its best efforts to timely file with the Commission
all of the reports it is required to file under the Exchange Act as a
prerequisite to availability of Form S-3.
4
<PAGE> 5
2.4 Registration Covenants of the Affiliates. In consideration of
the benefits accruing to them pursuant to this Agreement and in addition to
their other obligations set forth in this Agreement, each Affiliate covenants
and agrees to:
(a) cooperate with the Company, its counsel, advisors and
other representatives, and comply with all applicable provisions of Law
(including without limitation the prospectus delivery requirements of the Act
and Rule 10b-5 and Regulation M under the Securities Exchange Act of 1934, as
amended) in connection with any registration effected pursuant to the provisions
of this Agreement;
(b) promptly provide to the Company, in writing, such information
as the Company or its counsel deems necessary or appropriate for inclusion in
the Registration Statement, which information, when given, shall be true and
correct in all material respects and shall not omit any information necessary
to make the information furnished not misleading;
(c) refrain from transferring, by any means, ownership of or any
other interest in the Shares prior to the earnings release date identified in
Section 2.1(a)(ii) above;
(d) execute all questionnaires, powers of attorney or other
documents as the Company may reasonably request;
(e) discontinue sales of Registration Shares upon notification of
any stop order or suspension of the effectiveness of the Registration Statement;
(f) notify the Company immediately upon any material change in the
plan of distribution or other information concerning such Person described in
the prospectus;
(g) discontinue sales of Registration Shares and use of the
related prospectus following notification by the Company that the Registration
Statement must be amended or supplemented;
(h) not use any prospectus other than the most recent prospectus
related to the Registration Statement; and
(i) upon presentation of a stock certificate representing
Registration Shares sold under the Registration Statement, certify that the sale
was made in accordance with the terms hereof and the plan of distribution
described in the Registration Statement.
In the event that any Affiliate fails to comply in any material respect with its
obligations pursuant to Sections 2.4(a) through (d), any Shares held by such
Affiliate may be excluded from the Registration Statement and all of such
Affiliate's rights pursuant to this Agreement shall terminate. In the event that
any Affiliate fails to comply in any material respect with its obligations
pursuant to Sections 2.4(e) through (i), all of such Affiliate's rights pursuant
to this Agreement shall terminate other than with respect to Registration Shares
then registered on a Registration Statement.
2.5 Expenses.
(a) General. All expenses incident to the Company's performance of
or compliance with this Agreement, including, without limitation, all
registration and filing fees, fees and expenses of compliance with securities
or blue sky Laws, printing expenses, messenger and delivery expenses, and fees
and disbursements of counsel for the Company and all independent certified
public accountants and other Persons retained by the Company (all such expenses
being herein called "Registration Expenses"), will be borne by the Company. In
addition, the Company will pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties).
(b) Affiliates' Counsel. The Company will reimburse the
Affiliates for the reasonable fees and disbursements of one counsel mutually
chosen by the Affiliates in connection with the Demand Registration.
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<PAGE> 6
(c) Other. To the extent Registration Expenses are not required
to be paid by the Company, each Affiliate will pay those Registration Expenses
which are allocable to the registration of such Affiliate's securities included
in the Registration Statement, and any Registration Expenses not so
allocable will be borne by all of the Affiliates in proportion to the aggregate
selling price of the securities to be registered.
2.6 S-3 Qualification. The Company hereby represents and warrants to the
Affiliates that, as of the date of this Agreement, it has reasonable grounds to
believe that it meets all of the requirements for filing a registration
statement on Form S-3.
ARTICLE III
MISCELLANEOUS
3.1 Survival. All agreements, representations and warranties made
in this Agreement or in any document delivered pursuant to this Agreement shall
survive the execution of this Agreement, the delivery of any such document and
the sale of Shares pursuant to the Registration Statement.
3.2 Governing Law. This Agreement and the other documents issued
pursuant to this Agreement shall be governed by the Laws of the State of
Wisconsin.
3.3 Counterparts; Headings. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement. The Article and
Section headings in this Agreement are inserted for convenience of reference
only and shall not constitute a part hereof.
3.4 Entire Agreement. This Agreement, the Affiliate Letters
delivered pursuant to the Merger Agreement and the other documents referred to
herein and therein contain the entire understanding of the parties with respect
to the subject matter hereof. There are no restrictions, promises, warranties,
covenants or undertakings concerning such subject matter other than those
expressly set forth in this Agreement and such Affiliate Letters. This Agreement
and the Affiliate Letters supersede all prior negotiations, agreements and
undertakings between the parties with respect to such subject matter.
3.5 Notices. All communications or notices required or permitted by
this Agreement shall be in writing and shall be deemed to have been given at
the earlier of the date when actually delivered to a Person by personal
delivery, commercial courier or telephonic facsimile transmission accompanied
by a telephonic facsimile receipt and followed by hard copy by United States
mail, or three (3) days after being deposited in the United States mail,
certified or registered mail, postage prepaid, return receipt requested, and
addressed as follows, unless and until any of such parties notifies the others
in accordance with this Section of a change of address:
If to the Company: Sybron International Corporation
Attention: R. Jeffrey Harris, Esq.
411 East Wisconsin Avenue
Suite 2400
Milwaukee WI 53202
Fax No. 414/390-5476
6
<PAGE> 7
with a copy to
(which copy shall
not be deemed
notice to the
Company): Quarles & Brady
Attention: Kathryn M. Coates, Esq.
411 East Wisconsin Avenue
Milwaukee, WI 53202
Fax No. 414/271-3552
If to an Affiliate: To the address of such Affiliate set forth
for such Affiliate on the signature page to
this Agreement.
3.6 Amendments; Successors and Assigns. This Agreement may be
amended if such amendment is in writing and is signed by the Company and
Affiliates who own at least two-thirds (2/3s) of the Shares then owned by all
Affiliates. This Agreement may be assigned by an Affiliate only with the prior
written consent of the Company (which consent shall not be unreasonably
withheld). This Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
3.7 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
3.8 Interpretation. Unless the context requires otherwise, all words
used in this Agreement in the singular number shall extend to and include
the plural, all words in the plural number shall extend to and include the
singular, and all words indicating a gender shall extend to and include all
genders. In addition, any reference to a "Section" herein shall be a reference
to such Section of this Agreement unless otherwise indicated.
* * *
7
<PAGE> 8
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By: /s/R. Jeffrey Harris
---------------------------------------
R. Jeffrey Harris, Vice President -
General Counsel and Secretary
AFFILIATES: No. of Shares Received
Pursuant to the
Merger Agreement:
----------------
/s/William Crouse 100,630
- ---------------------------------------- -------
William Crouse
c/o HealthCare Ventures
44 Nassau Street
Princeton, New Jersey 08542
Fax No.:
-----------------
/s/Gordie Nye 84,003
- ---------------------------------------- ------
Gordie Nye
7908 Lowry Terrace
La Jolla, California 92037
Fax No.:(619) 459-4563
--------------
/s/Kenneth Rainin 1,114,309
- ---------------------------------------- ---------
Kenneth Rainin
c/o Rainin Instrument Co.
5400 Hollis Street
Emeryville, California 94608
Fax No.:(510) 652-5865
--------------
/s/Robert B. Stockman 294,013
- ---------------------------------------- -------
Robert B. Stockman
c/o Johnston Associates, Inc.
181 Cherry Valley Road
Princeton, New Jersey 08540
Fax No.:(609) 683-7524
--------------
8
<PAGE> 9
/s/Andrew J. Futey 25,510
- ---------------------------------------- ------
Andrew J. Futey
11416 Caminito Corriente
San Diego, California 92128
Fax No.:(619) 635-7666
--------------
/s/Charles Madsen 15,854
- ---------------------------------------- ------
Charles Madsen
1535 Laburnum Road
Hoffman Estates, Illinois 60195
Fax No.:(847) 358-7428
--------------
/s/David J. Milner 14,622
- ---------------------------------------- ------
David J. Milner
17207 North Woodson Court
Ramona, California 92065
Fax No.:(619) 635-7668
--------------
/s/Michael P. Oliver 9,748
- ---------------------------------------- -----
Michael P. Oliver
12433 Rue Fountainbleau
San Diego, California 92131
Fax No.:
-----------------
/s/Richard Poinsett 4,874
- ---------------------------------------- -----
Richard Poinsett
11067 Ipai Court
San Diego, California 92127
Fax No.:
-----------------
LIBERTY PARTNERS HOLDINGS 5, L.L.C.
By: /s/Michael J. Kluger 1,075,719
------------------------------------ ---------
Name: Michael J. Kluger
-----------------------------
Title: Managing Director
-----------------------------
1177 Avenue of the Americas
New York, New York 10036
Attn: Michael J. Kluger
Fax No.:(212) 354-0336
--------------
9
<PAGE> 10
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: /s/Michael J. Kluger 151,965
------------------------------------ -------
Name: Michael J. Kluger
-----------------------------
Title: Managing Director
-----------------------------
c/o Liberty Capital Partners, Inc.
1177 Avenue of the Americas
New York, New York 10036
Attn: Michael J. Kluger
Fax No.:(212) 354-0336
--------------
10
<PAGE> 1
EXHIBIT 99.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is entered into this 9th day
of April, 1998, by and among SYBRON INTERNATIONAL CORPORATION ("SYBRON"), STATE
STREET BANK AND TRUST COMPANY (the "Escrow Agent"), MICHAEL KLUGER, GORDON NYE
and KENNETH RAININ (collectively, the "LRS Representatives"), and each of the
HOLDBACK PARTICIPANTS identified on SCHEDULE I.
WHEREAS, simultaneously with the execution and delivery hereof, SYBRON,
Normandy Acquisition Co. ("ACQUISITION"), LRS Acquisition Corp. ("LRS") and
Liberty Partners Holdings 5, L.L.C. ("Liberty") are consummating the
transactions described in an Agreement and Plan of Reorganization dated as of
January 23, 1998 (the "Agreement"), pursuant to which, among other things, each
share of the issued and outstanding capital stock of LRS, an outstanding warrant
held by Liberty to purchase LRS capital stock and certain outstanding options
for such capital stock was converted into or exchanged for common stock, par
value $0.01 per share, of SYBRON ("Common Stock") registered under the
Securities Act of 1933, resulting in the issuance of an aggregate of 3,215,982
shares of Common Stock (the "Merger Shares"); and
WHEREAS, the Agreement contemplates delivery by the LRS Warrantholder
and certain LRS Stockholders and LRS Optionholders, each identified on SCHEDULE
I hereto (each, a "Holdback Participant"), of a portion of the Merger Shares
received by such Holdback Participant, as identified on SCHEDULE I hereto, to
the Escrow Agent at the Closing as described herein, to be held by the Escrow
Agent in accordance with the terms hereof;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein which are not otherwise
defined herein shall have the meanings given to such terms in the Agreement.
2. APPOINTMENT AND ACCEPTANCE. SYBRON, the LRS Representatives and the
Holdback Participants hereby constitute and appoint the Escrow Agent as, and the
Escrow Agent hereby agrees to assume and perform the duties of, the Escrow Agent
under and pursuant to this Escrow Agreement. Furthermore, the Holdback
Participants hereby authorize the LRS Representatives to act on their behalf as
described in this Escrow Agreement, including without limitation pursuant to
Section 20. Upon execution of this Escrow Agreement (and in any event prior to
the investment of funds), the LRS Representatives agree to obtain from each of
the Holdback Participants and deliver to the Escrow Agent a fully executed
Internal Revenue Service Form W-9. The parties hereto understand that, in the
event their tax identification numbers are not certified to the Escrow Agent,
the Internal Revenue Code, as amended from time to time, may require withholding
of a portion of any interest or other income earned on the investment of the
Escrow Deposit. The parties hereto agree that, for tax reporting purposes, all
interest or other income earned from the investment of the Escrow Fund
(including any Dispute Fund and any Reserved Amount, each as defined below,
which are part of the Escrow Fund) shall be allocable to the Holdback
Participants in accordance with their percentages set forth on SCHEDULE I.
3. ESTABLISHMENT OF ESCROW FUND. (a) Immediately upon the execution of
this Escrow Agreement, the Escrow Agent shall establish an escrow account (the
"Escrow Account") into and from which certain deposits and/or disbursements
shall be made pursuant to the terms of this Agreement.
(b) In accordance with the terms of Section 2.8(f) of the Agreement,
there hereby is deposited (the "Escrow Deposit"), on behalf of and at the
direction of the Holdback Participants, into the Escrow Account certificates
representing Merger Shares (the "Escrow Shares") together with a separate stock
power for each such certificate executed in blank by the record holder thereof,
receipt of which is hereby acknowledged by the Escrow Agent. The number of
Escrow Shares deposited by each Holdback Participant is set forth on SCHEDULE I
hereto. From and after the date hereof, the term "Escrow Fund" means the Escrow
Deposit less any distributions therefrom made in accordance
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<PAGE> 2
with the provisions of this Escrow Agreement, plus any additions thereto
resulting from any stock split or stock dividend paid on the Escrow Shares and
delivered to the Escrow Agent and the proceeds from any sale of Merger Shares as
described in Section 20. All such distributions and additions shall be allocable
to the Holdback Participants in accordance with their percentages set forth on
SCHEDULE I. In particular, and not in limitation of the foregoing, the Escrow
Fund shall include any property held in a Dispute Fund and any Reserved Amount
(each as defined below).
4. DISPOSITION OF ESCROW FUND. SYBRON and the LRS Representatives
hereby instruct the Escrow Agent, and the Escrow Agent hereby agrees, to hold,
invest and dispose of the Escrow Fund and any interest and other income received
from the investment or reinvestment of the Escrow Fund, including any cash
dividends received with respect to shares held therein (collectively, the
"Interest"), in accordance with and subject to the terms, conditions,
limitations and restrictions contained in this Escrow Agreement.
5. INVESTMENT. The Escrow Agent shall invest and reinvest any cash
funds from time to time comprising part of the Escrow Fund and all Interest in
SSgA U.S. Treasury Money Market Funds. In no event shall the Escrow Agent have
any liability under this Escrow Agreement for investment losses incurred on any
investment or reinvestment made in accordance with the terms of this Escrow
Agreement.
6. CHARGES AGAINST ESCROW DEPOSIT. (a) The Escrow Fund has been
established for the purposes of securing and providing a source for satisfying
the indemnification rights of SYBRON and the Surviving Corporation pursuant to
Section 10.3 of the Agreement. In the event that, and from time to time as,
SYBRON, the Surviving Corporation or, with respect to defense costs permitted to
be recovered from the Escrow Fund pursuant to Section 10.3 of the Agreement, the
LRS Representatives (any of such parties hereinafter also referred to as the
"Claimant") is entitled to amounts pursuant to Section 10.3 of the Agreement (an
"Indemnification Claim"), the Claimant shall promptly provide written notice
(which notice shall set forth with reasonable specificity the basis for the
Indemnification Claim and the amount of the Indemnification Claim (the "Claimed
Amount")) thereof to the Escrow Agent and, if the Claimant is SYBRON or the
Surviving Corporation, to the LRS Representatives (collectively, an "Other
Party" for purposes hereof) or, if the Claimant is the LRS Representatives, to
SYBRON and the Surviving Corporation (collectively, an "Other Party" for
purposes hereof).
(b) Unless it receives a timely Objection Notice pursuant to Section 7
from the Other Party, at the end of the time period set forth in such Section 7
for the giving of an Objection Notice, the Escrow Agent shall disburse to the
Claimant out of the Escrow Fund the Claimed Amount. The LRS Representatives
shall have the right to designate whether the Claimed Amount is satisfied with
cash contained in the Escrow Fund, Merger Shares or a combination of cash and
Merger Shares, provided notice of such designation is given to the Escrow Agent
and SYBRON no later than 5:00 p.m., Eastern Time, on the fifth business day
following expiration of the time period set forth in Section 7 for the giving of
an Objection Notice. If no such designation is made, the manner in which the
Claimed Amount is satisfied from the Escrow Fund shall be at the discretion of
the Escrow Agent. Any disbursement of Escrow Shares to the Claimant as described
herein shall be accomplished by delivery of the certificates representing the
Escrow Shares to BankBoston, N.A., the transfer agent for the Escrow Shares,
with instructions to transfer and deliver to the Claimant a stock certificate
evidencing the requisite number of shares to be released to the Claimant, with
certificates representing the balance to be returned to the Escrow Agent. The
Holdback Participants agree to take all actions necessary to cause such transfer
agent to so transfer the Escrow Shares.
(c) If the Escrow Agent receives a timely Objection Notice pursuant to
Section 7 from the Other Party, then the disbursement of the Escrow Fund shall
be governed by the procedures set forth in Sections 7 and 8 hereof.
7. DISPUTE OF INDEMNIFICATION CLAIM AGAINST ESCROW FUND.
(a) The Other Party shall have the right to dispute any Indemnification
Claim within the thirty (30) calendar day period following delivery of notice of
the Indemnification Claim to the Escrow Agent by delivering to the Escrow Agent
and the Claimant written notice that the Indemnification Claim is being
disputed. Such notice shall include the basis, with reasonable specificity, of
the objection and identification of the portion, if any, of the Claimed Amount
to which the Other Party has no objection and which may be released to the
Claimant.
2
<PAGE> 3
(b) Upon timely receipt of an Objection Notice, the Escrow Agent shall
reserve against the Escrow Fund an amount equal to the Claimed Amount (less any
portion thereof released as described in Section 7(a)) and place the amount so
reserved in a separate account (such amount so reserved and placed in a separate
account being called a "Dispute Fund"). Any Merger Shares reserved as part of
the Dispute Fund (and for all other purposes of this Escrow Agreement other than
a sale pursuant to Section 20) shall be valued at $27.1042 (the Average Sybron
Stock Price) and such reservation may be accomplished without an actual transfer
of share certificates but by an appropriate entry in the Escrow Agent's records
(pending resolution of the Indemnification Claim). The LRS Representatives shall
have the right to designate whether such reserved amount (and the portion of the
Claimed Amount which may be released in accordance with Section 7(a)) is
satisfied with cash contained in the Escrow Fund, Merger Shares or a combination
of cash and Merger Shares, provided notice of such designation is given to the
Escrow Agent and SYBRON no later than 5:00 p.m., Eastern Time, on the fifth
business day following the Escrow Agent's receipt of the Objection Notice. If no
such designation is made, the manner in which the reserved amount (or released
amount, if applicable) is satisfied from the Escrow Fund shall be at the
discretion of the Escrow Agent. The disbursement of any released portion of the
Claimed Amount (as described in Section 7(a)) to be satisfied with Escrow Shares
shall be accomplished in the same manner as set forth in Section 6(b).
(c) A Dispute Fund shall continue to be held hereunder by the Escrow
Agent pursuant to the terms hereof until the earlier of: (i) the receipt by the
Escrow Agent of joint written instructions from the Claimant and the Other
Party, in which case the Escrow Agent shall promptly follow the instructions
therein; or (ii) the receipt by the Escrow Agent, with a copy to all other
interested parties under this Escrow Agreement, of a certified copy of a Final
Judgment (as hereinafter defined) with respect to the Indemnification Claim and
the Dispute Fund by a court of competent jurisdiction, together with a notarized
affidavit (made under penalties of perjury) from the delivering party which
states that the order delivered to the Escrow Agent is a Final Judgment (as
hereinafter defined), in which case the Escrow Agent shall promptly proceed in
accordance with the Final Judgment. An order shall be deemed final (a "Final
Judgment") upon (A) the expiration of the time allowed for appeal without either
the Claimant or the Other Party having appealed such order, or (B) entry of such
final order if no right of appeal exists or such appeal shall have been finally
determined.
8. TERMINATION; RELEASE OF ESCROW FUND. The Escrow Fund shall terminate
(the "Escrow Fund Termination Date") on the earlier to occur of: (i) the date
that the first audit of SYBRON's financial statements following the execution of
this Escrow Agreement is completed (which date shall be certified to the Escrow
Agent by SYBRON), or (2) the date which is one (1) year following execution of
this Escrow Agreement; except with respect to (A) any Dispute Funds then
existing and (B) any Indemnification Claims made pursuant to Section 6 which
have not yet been paid in accordance with the provisions of Section 6 or for
which the time period for the giving of an Objection Notice in accordance with
the provisions of Section 7 has not yet expired (the "Reserved Amounts"). The
Escrow Agent shall on the business day next succeeding the Escrow Fund
Termination Date disburse to the Holdback Participants pursuant to the
guidelines set forth in SCHEDULE II and in accordance with their percentages set
forth on SCHEDULE I the property then remaining in the Escrow Fund, less the
Reserved Amounts, along with all of the Interest, if any. The Dispute Funds and
Reserved Amounts shall continue to be held hereunder by the Escrow Agent
pursuant to the terms hereof, and this Escrow Agreement shall continue in full
force and effect, until each Indemnification Claim is paid and/or each dispute
with respect thereto has been resolved in accordance with the provisions of
Section 7 and the Escrow Agent has disbursed such Dispute Funds and Reserved
Amounts in accordance with the terms of Sections 6 or 7 above. Upon disbursement
of the last of the Dispute Funds and Reserved Amounts, the Escrow Agent shall
disburse to the Holdback Participants pursuant to the guidelines set forth on
SCHEDULE II and in accordance with their percentages set forth on SCHEDULE I any
Interest earned since the Escrow Fund Termination Date on such Dispute Funds and
Reserved Amounts.
9. PERFORMANCE BY THE ESCROW AGENT. The Escrow Agent may seek advice
from counsel of its choice (other than counsel for SYBRON or any Holdback
Participant but including any in-house counsel employed by the Escrow Agent) and
may rely upon such advice as it thereupon receives in writing, or it may act or
refrain from acting in accordance with its best judgment and shall not, as a
result thereof, be liable to any party to this Escrow Agreement except for
willful misconduct, gross negligence, willful violation of this Escrow Agreement
or willful violation of applicable law. The Escrow Agent (i) shall not be
responsible for any of the other agreements referred to herein and
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<PAGE> 4
shall be obligated only for the performance of such duties as are specifically
set forth in this Escrow Agreement; (ii) shall not be responsible for any aspect
of a sale of Escrow Shares as set forth in Section 20 from the time of its
release of such Escrow Shares in accordance with instructions contained in the
relevant Sale Notice (as defined in Section 20) to the time of its receipt of
sale proceeds resulting from any such sale, including without limitation the
adequacy of any purchase price received upon any such sale; and (iii) shall not
be obligated to take any legal or other action hereunder which might in its
judgment involve any expense or liability unless it shall have been furnished
with acceptable indemnification.
10. RESPONSIBILITY OF THE ESCROW AGENT.
(a) The Escrow Agent, as such, shall not be responsible or liable to
any person, whether or not a party to this Escrow Agreement, for any act or
omission of any kind so long as it has acted in good faith upon the instructions
herein contained or upon the instructions hereafter delivered to it as
contemplated by this Escrow Agreement or upon advice of counsel as provided in
Section 9. To the extent that the Escrow Agent incurs any loss or liability
(including reasonable attorneys' fees and expenses resulting from any such act
or omission or arising out of or in connection with this Escrow Agreement or
administration of its duties hereunder), SYBRON and the Holdback Participants
shall jointly and severally indemnify the Escrow Agent therefor, unless the loss
or liability resulted from the Escrow Agent's willful misconduct, gross
negligence, willful violation of this Escrow Agreement or willful violation of
applicable law.
(b) With respect to their respective obligations to indemnify the
Escrow Agent hereunder, SYBRON and the Holdback Participants expressly reserve
all of their rights as against each other to seek contribution, reimbursement or
any other appropriate relief.
(c) The Escrow Agent may rely and act upon any certificate or other
document conforming to the applicable provisions hereof and reasonably believed
by it to be genuine and to have been signed by the proper party, including
without limitation any Sale Notice received by it pursuant to Section 20. All
persons shall be conclusively bound as against the Escrow Agent by any payment
or release of the Escrow Fund pursuant to, and in conformity with, the terms of
this Escrow Agreement.
(d) SYBRON and the Holdback Participants jointly and severally agree to
assume any and all obligations imposed now or hereafter by any applicable tax
law with respect to the payment of the Escrow Fund under this Escrow Agreement,
and to indemnify and hold the Escrow Agent harmless from and against any taxes,
additions for late payment, interest, penalties and other expenses that may be
assessed against the Escrow Agent in connection with any such payment or other
activities under this Escrow Agreement. SYBRON and the Holdback Participants
undertake to instruct the Escrow Agent in writing with respect to the Escrow
Agent's responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting in connection
with its acting as Escrow Agent under this Escrow Agreement insofar as such
items relate to the maintenance and release of the Escrow Fund. SYBRON and the
Holdback Participants jointly and severally agree to indemnify and hold the
Escrow Agent harmless from any liability on account of taxes, assessments or
other governmental charges, including without limitation the withholding or
deduction or the failure to withhold or deduct the same, and any liability for
failure to obtain proper certifications or to properly report to governmental
authorities, to which the Escrow Agent may be or become subject in connection
with or which arise out of this Escrow Agreement insofar as they relate to the
maintenance and release of the Escrow Fund, including costs and expenses
(including reasonable legal fees and expenses), interest and penalties, unless
such liability results from the Escrow Agent's willful misconduct, gross
negligence, willful violation of this Escrow Agreement or willful violation of
applicable law. In no event shall the Escrow Agent be responsible for indirect,
consequential or special damages.
(e) The foregoing indemnities set forth in this Section 10 and the
obligations set forth in Section 12 shall survive the resignation or removal of
the Escrow Agent and the termination of this Escrow Agreement. The Escrow Agent
shall have no more or less responsibility or liability on account of any action
or omission of any book-entry depository or subescrow agent employed by the
Escrow Agent than any such book-entry depository or subescrow agent has to the
Escrow Agent, except to the extent that such action or omission of any
book-entry depository or subescrow agent was caused by the Escrow Agent's own
gross negligence, bad faith or willful misconduct.
4
<PAGE> 5
11. RESIGNATION OF THE ESCROW AGENT. The Escrow Agent may at any time
resign by giving thirty (30) days written notice of resignation to SYBRON and
the LRS Representatives. In such event SYBRON and the LRS Representatives shall
appoint a successor escrow agent to be effective on the effective date of the
aforesaid resignation. If no successor escrow agent is named by SYBRON and the
LRS Representatives, the Escrow Agent may apply to a court of competent
jurisdiction for appointment of a successor escrow agent. All right, title and
interest to the Escrow Fund and any Interest, and any proceeds thereof, shall be
transferred to the successor escrow agent and this Escrow Agreement shall be
assigned to such successor escrow agent, and the resigning Escrow Agent shall
thereupon be released from further obligations hereunder.
12. DISCHARGE OF THE ESCROW AGENT. The Escrow Agent agrees that SYBRON
and the LRS Representatives may, by mutual written agreement at any time upon
thirty (30) days written notice, remove the Escrow Agent as escrow agent
hereunder, and substitute a bank or trust company therefor, in which event, upon
receipt of written notice thereof and payment of any accrued but unpaid fees or
expenses due the Escrow Agent, the Escrow Agent shall account for and deliver to
such substituted escrow agent the Escrow Fund held by it, and the Escrow Agent
shall thereafter be discharged from all liability hereunder.
13. EXPENSES. The Escrow Agent shall be entitled to fees for its
services hereunder and expenses payable in accordance with SCHEDULE III attached
hereto, including legal fees incurred in connection with the preparation of this
Escrow Agreement and the preparation of any amendment hereto in an amount not to
exceed the limit set forth on SCHEDULE III. Such expenses shall not include any
expenses incurred by the Escrow Agent with respect to its retention of any
book-entry depository or subescrow agent. All charges and expenses of the Escrow
Agent under this Escrow Agreement shall be borne one-half by SYBRON and one-half
by the Holdback Participants (allocated among such Holdback Participants based
on their respective percentages set forth on SCHEDULE I); except that the
Holdback Participants shall be solely responsible for all transaction fees and
charges incurred in connection with any sale of Escrow Shares as described in
Section 20. In the event that the Escrow Agent is authorized to make a cash
disbursement to any party pursuant to and in accordance with the terms of this
Escrow Agreement, and fees and expenses are then due from and payable by such
party to the Escrow Agent pursuant to the terms of this Escrow Agreement, the
Escrow Agent is hereby authorized to offset such amounts due and payable to it
against the disbursement to such party.
14. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given on the day actually
delivered when delivered personally, by commercial courier or by a telephonic
facsimile transmission and followed by hard copy sent by United States mail, or
three (3) days after being deposited in the United States mail, certified or
registered mail, postage prepaid, return receipt requested, and in each case
addressed as follows, unless and until any of such parties notifies the others
in accordance with this Section of a change of address:
If to the LRS Representatives: Michael Kluger
c/o Liberty Capital Partners, Inc.
1177 Avenue of the Americas
New York, New York 10036
Fax No. 212-354-0336
Gordon Nye
7908 Lowry Terrace
La Jolla, California 92037
Fax No. 619-652-5865
Kenneth Rainin
c/o Rainin Instrument Co.
5400 Hollis Street
Emeryville, California 94608
Fax No. 510-652-6865
5
<PAGE> 6
With a copy to (which copy shall not
constitute notice to any LRS
Representative):
Kirkland & Ellis
Attn: Edward T. Swan, Esq.
200 East Randolph Drive
Chicago IL 60601
Fax No. 312/861-2200
If to the Holdback Participants: To the addresses set forth on SCHEDULE II.
With a copy to (which copy shall not
constitute notice to any Holdback
Participant):
Kirkland & Ellis
Attn: Edward T. Swan, Esq.
200 East Randolph Drive
Chicago IL 60601
Fax No. 312/861-2200
If to SYBRON or the Surviving Sybron International Corporation
Corporation: Attn: R. Jeffrey Harris, Esq.
411 East Wisconsin Avenue
24th Floor
Milwaukee WI 53202
Fax No. 414/390-5479
With a copy to (which copy shall not
constitute notice to SYBRON or the
Surviving Corporation):
Quarles & Brady
Attn: Kathryn M. Coates, Esq.
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Fax No. 414-277-5237
If to the Escrow Agent: State Street Bank and Trust Company
Attn: Corporate Trust Department
Two International Place
Fourth Floor
Boston, Massachusetts 02110
Fax No. 617-664-5365
15. GOVERNING AGREEMENT; AMENDMENTS. The Escrow Agent hereby
acknowledges receipt of a copy of the Agreement, but except for reference
thereto for definitions of certain words and terms not defined herein, the
Escrow Agent is not charged with any duty or obligation arising under the
Agreement and the responsibilities and duties of the Escrow Agent shall be
governed by this Escrow Agreement. As between the Escrow Agent, on the one hand,
and the other parties hereto, on the other hand, this Escrow Agreement
constitutes the entire agreement with respect to the subject matter herein. As
between the other parties hereto, this Escrow Agreement shall govern to the
extent of any conflict between it and the Agreement or any other agreement or
writing, unless otherwise provided herein. No change in, addition to, or waiver
of the terms and conditions hereof shall be binding upon any of the parties
hereto unless approved in writing by the other parties hereto.
6
<PAGE> 7
16. BINDING EFFECT. This Escrow Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors, assigns
and legal representatives. No party hereto may assign any of its rights,
interests or obligations hereunder without the consent of the other parties
hereto.
17. APPLICABLE LAW. This Escrow Agreement shall be governed by and
construed as to validity, enforcement, interpretation, construction, effect and
in all other respects in accordance with the internal laws (as opposed to the
conflicts of law provisions) of the State of Wisconsin applicable to contracts
made in that State.
18. COUNTERPARTS. This Escrow Agreement may be executed in two or more
counterparts, each of which is an original but all of which together shall
constitute one and the same instrument. Delivery of this Escrow Agreement may be
accomplished by facsimile.
19. INTERPRETATION. Titles and headings to Sections herein are inserted
for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Escrow Agreement. Unless
specifically identified as a reference to another document, any reference to a
"Section" herein shall be deemed to be a reference to such Section of this
Escrow Agreement. Whenever the terms hereof call for any notice, payment or
other action on a day which is not a business day, such payment or action may be
taken, or such notice given, as the case may be, on the next succeeding business
day. As used herein, "business day" shall mean any day other than a Saturday or
Sunday, or any other day on which the Escrow Agent is closed for business.
20. RIGHTS AS SHAREHOLDERS. Other than as specifically set forth
herein, the Holdback Participants shall be entitled to exercise all rights they
may otherwise have as the record holders of the Escrow Shares, including without
limitation the right to vote and sell the Escrow Shares. The LRS Representatives
shall have the right, in their sole discretion, to obtain the release of all or
any portion of the Escrow Shares then held as part of the Escrow Fund so that
such shares may be sold; provided that such sale may only be accomplished in
accordance with the provisions of the Affiliate Letters and the Registration
Rights Agreement (each as defined in and executed pursuant to the Agreement);
provided further that any such sale shall involve a sale of Escrow Shares by all
Holdback Participants, to be allocated among such Holdback Participants in
accordance with their respective percentages set forth on SCHEDULE I; and
provided further that all proceeds from a sale of Escrow Shares as described
herein shall be promptly deposited upon receipt thereof by the Escrow Agent into
the Escrow Account to be held as part of the Escrow Fund in accordance with the
provisions of this Escrow Agreement. The Escrow Agent agrees (i) to release
(prior to the receipt of any sale proceeds) any Escrow Shares (and the
accompanying blank stock power(s)) proposed to be sold upon its receipt of
written notice of the intended sale (a "Sale Notice") from the LRS
Representatives, which notice shall be provided at least five (5) days prior to
the proposed release date of the Escrow Shares and shall specify the number of
shares to be released and appropriate delivery instructions with respect
thereto, (ii) to cooperate with the LRS Representatives in their dealings with
SYBRON's transfer agent in order to obtain new certificates representing Escrow
Shares not sold as described herein, and (iii) to accept the proceeds from any
sale of Escrow Shares as described in Section 3(b). Upon the giving of any Sale
Notice to the Escrow Agent, the LRS Representatives shall provide a copy thereof
to SYBRON.
21. ACTION BY LRS REPRESENTATIVES. At any time any action is required
or permitted to be taken by the LRS Representatives pursuant to the provisions
of this Escrow Agreement, including without limitation the execution of any
document or instrument, such action shall be deemed to have been taken if at
least two (2) of the three (3) LRS Representatives so act.
22. DISPUTE RESOLUTION. It is understood and agreed that should any
dispute arise with respect to the delivery, ownership, right of possession,
and/or disposition of the Escrow Fund (including any Dispute Fund or Reserved
Amount), or should any claim be made upon such Escrow Fund by a third party, the
Escrow Agent, upon receipt of written notice of such dispute or claim by the
parties hereto or by a third party, is authorized and directed to retain in its
possession without liability to anyone, all or any of said Escrow Fund until
such dispute shall have been settled either by the mutual written agreement of
the parties involved or by a Final Judgment. The Escrow Agent may, but shall be
under no duty whatsoever to, institute or defend any legal proceedings which
relate to the Escrow Fund (including any Dispute Fund or Reserved Amount).
7
<PAGE> 8
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By: /s/Dennis Brown
-----------------------------------------------
Name: Dennis Brown
-------------------------------------------
Title: Vice President-Finance
-------------------------------------------
/s/Michael J. Kluger
---------------------------------------------------
Michael Kluger, as an LRS Representative
/s/Gordie Nye
---------------------------------------------------
Gordon Nye, as a Holdback Participant and an LRS
Representative
/s/Kenneth Rainin
---------------------------------------------------
Kenneth Rainin, as a Holdback Participant and an LRS
Representative
STATE STREET BANK AND TRUST COMPANY
By: /s/Patrick E. Thebado
-----------------------------------------------
Name: Patrick E. Thebado
---------------------------------------------
Title: Assistant Vice President
--------------------------------------------
LIBERTY PARTNERS HOLDINGS 5, L.L.C.
By: /s/Michael J. Kluger
-----------------------------------------------
Name: Michael J. Kluger
---------------------------------------------
Title: Managing Director
--------------------------------------------
/s/Robert B. Stockman
---------------------------------------------------
Robert B. Stockman, as a Holdback Participant
/s/Robert F. Johnston
---------------------------------------------------
Robert F. Johnston, as a Holdback Participant
/s/William W. Crouse
---------------------------------------------------
William W. Crouse, as a Holdback Participant
8
<PAGE> 9
/s/Joseph Mandato
---------------------------------------------------
Joseph Mandato, as a Holdback Participant
/s/Edward P. Weinsoff
---------------------------------------------------
Edward P. Weinsoff, as a Holdback Participant
/s/Andrew J. Futey
---------------------------------------------------
Andrew J. Futey, as a Holdback Participant
/s/Charles Madsen
---------------------------------------------------
Charles Madsen, as a Holdback Participant
/s/David J. Milner
---------------------------------------------------
David J. Milner, as a Holdback Participant
/s/Michael P. Oliver
---------------------------------------------------
Michael P. Oliver, as a Holdback Participant
/s/Richard Poinsett 4-6-98
---------------------------------------------------
Richard Poinsett
STATE BOARD OF ADMINISTRATION OF
FLORIDA
By: /s/Michael J. Kluger
-----------------------------------------------
Name: Michael J. Kluger
---------------------------------------------
Title: Managing Director
--------------------------------------------
9
<PAGE> 10
SCHEDULE I
ESCROW DEPOSIT
[ATTACHED]
10
<PAGE> 11
HOLDBACK SHARES
2.8(b)(ii) $6,300,000 divided by $27.1042 = 232,436
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Name of Share Holdback
Holdback Participant Entitlement Percentage Allocation
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Liberty Partners Holdings 5 LLC 1,075,719.70 34.68 80,609
Kenneth Rainin 1,114,309.06 35.94 83,538
Robert B. Stockman 294,013.64 9.48 22,035
Robert F. Johnston 98,004.55 3.16 7,345
William W. Crouse 100,630.98 3.24 7,531
Gordon Nye 84,003.90 2.71 6,299
Joseph Mandato 98,097.17 3.16 7,345
Edward P. Weinsoff 14,000.65 0.45 1,045
Andrew J. Futey 25,510.10 0.82 1,906
Charles Madsen 15,854.13 0.51 1,185
David J. Milner 14,622.62 0.47 1,092
Michael P. Oliver 9,748.42 0.31 721
Richard Poinsett 4,874.21 0.16 372
State Board of Adm. of Florida 151,965.78 4.91 11,413
---------- ---- ------
3,101,354.91 100% 232,436
============ ==== =======
</TABLE>
11
<PAGE> 12
SCHEDULE II
GUIDELINES FOR DISBURSEMENTS FROM THE ESCROW DEPOSIT
TO THE HOLDBACK PARTICIPANTS
Prior to termination of the Escrow Fund, each Holdback Participant shall submit
payment and/or delivery instructions to the Escrow Agent. The address and/or fax
number for each Holdback Participant as of the date of the Escrow Agreement is
as indicated below:
Gordon Nye Kenneth Rainin
7908 Lowry Terrace c/o Rainin Instrument Co.
La Jolla CA 92037 5400 Hollis Street
Fax No. 619-459-4563 Emeryville CA 94608
Fax No.: 510-652-5865
Liberty Partners Holdings 5,
L.L.C. Michael P. Oliver
1177 Avenue of the Americas 12433 Rue Fountainbleau
New York NY 10036 San Diego CA 92131
Attn: Michael J. Kluger
Fax No. 212-354-0336 Richard Poinsett
11067 Ipai Court
Robert B. Stockman San Diego CA 92127
c/o Johnston Associates, Inc.
181 Cherry Valley Road State Board of
Princeton NJ 08540 Administration of Florida
Fax No. 609-683-7524 c/o Liberty Capital
Partners, Inc.
William W. Crouse 1177 Avenue of the Americ
c/o HealthCare Ventures New York NY 10036
44 Nassau Street Attn: Michael J. Kluger
Princeton NJ 08542 Fax No. 212-354-0336
Andrew J. Futey Robert F. Johnston
11416 Caminito Corriente Johnston Associates, Inc.
San Diego, CA 92128 181 Cherry Valley Road
Fax No. 619-635-7666 Princeton NJ 08540
Fax No. 609-683-7524
Charles Madsen
1535 Laburnum Road Joseph Mandato
Hoffman Estates, IL 60195 Araxsys, Inc.
Fax No. 847-358-7428 200 Penobscot Drive
Redwood City CA 94603
David J. Milner
17207 North Woodson Court Edward P. Weinsoff
Ramona CA 92065 c/o Rainin Instrument Co.
Fax No. 619-635-7668 5400 Hollis Street
Emeryville CA 94608
Fax No. 510-652-5865
