UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
BIOCIRCUITS CORPORATION
----------------------------------
(Name of Issuer)
Common Stock, $.001 Par Value
----------------------------------
(Title of Class of Securities)
09058W101
----------------------------------
(CUSIP Number)
William W. Davis
Assistant General Counsel
Beckman Instruments, Inc.
2500 Harbor Boulevard
Fullerton, California 92834
(714) 773-6907
----------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 13, 1996
----------------------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box/ /.
Note: Six copies of this statement including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
Continued on following pages
Page 1 of 12 Pages
Exhibit Index: Page 7
<PAGE>
SCHEDULE 13D
CUSIP No. 09058W101 Page 2 of 12
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Beckman Instruments, Inc.
I.R.S. Identification No. 95-104-0600
2 Check the Appropriate Box if a Member of a Group*
a. ( )
b. (X)
3 SEC Use Only
4 Source of Funds*
WC
5 Check Box if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e) / /
6 Citizenship or Place of Organization
Delaware
7 Sole Voting Power
Number of 1,111,727
Shares 222,345 (warrant for)
Beneficially
Owned By 8 Shared Voting Power
Each 0
Reporting
Person 9 Sole Dispositive Power
With 1,111,727
222,345 (warrant for)
10 Shared Dispositive Power
0
11 Aggregate Amount Beneficially Owned by Each Reporting
Person
1,334,072
12 Check Box If the Aggregate Amount in Row (11) Excludes
Certain Shares
(See Instructions) / /
13 Percent of Class Represented By Amount in Row (11)
15.1%
14 Type of Reporting Person*
CO
<PAGE>
Page 3 of 12
SCHEDULE 13D
Item 1. Security and Issuer
Common stock and warrant for common stock
Biocircuits Corporation, a Delaware corporation
1324 Chesapeake Terrace
Sunnyvale, CA 94089
Item 2. Identity and Background
Beckman Instruments, Inc., a Delaware corporation
2500 Harbor Blvd.
Fullerton, CA 92834
Beckman Instruments, Inc. (the Company) is a
manufacturer of laboratory instrument systems, reagents
and related products that are used to conduct basic
scientific research and diagnostic analysis of patient
samples.
Schedule I, attached hereto and incorporated herein by
reference, sets forth the following information for
each director and executive officer of the Company:
name, business address, present principal occupation or
employment, the name, principal business and address of
any corporation or other organization in which such
employment is conducted, and citizenship.
(d) During the last five years, neither the Company
nor, to the best of the Company's knowledge, any of its
directors or executive officers has been convicted in a
criminal proceeding, excluding traffic violations or
similar misdemeanors.
(e) During the last five years, neither the Company
nor, to the best of the Company's knowledge, any of its
directors or executive officers was a party to a civil
proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or
prohibiting or mandating activities subject to, Federal
or State security laws or finding any violations with
respect to such laws.
Page 4 of 12
Item 3. Source and Amount of Funds or Other Consideration
The Company acquired all of the shares of common stock
and the warrant reported herein by the conversion of a
convertible secured promissory note of the Issuer and
from the interest due thereon. The note was issued
August 15, 1995 in the amount of $3,500,000 at an
interest rate of 7.125%. The Company acquired the note
by payment of $3,500,000 cash from its working capital.
None of the funds used to purchase the note were
borrowed.
Item 4. Purpose of Transaction
The Company acquired the note in 1995 for investment
purposes. The Company converted the note into shares
of common stock and a warrant for additional shares of
common stock for investment purposes with a present
plan to begin selling, at its discretion, some of the
shares, subject to the terms of an agreement with the
Issuer as described in Item 6 herein. At the time of
and as part of the conversion of the note, the Company
acquired a warrant for the purchase of 222,345 shares
of common stock of the Issuer at a fixed price of
$3.4469311 per share. The warrant is exercisable at
any time, in whole or in part, at the Company's
discretion upon payment of the purchase price.
From time to time the Company will review its
investment in the shares and determine whether it
wishes to continue to sell, hold or buy additional
shares of the Issuer. The Company will consider in its
evaluation the Issuer's business prospects and
financial condition, the market for the shares, other
opportunities available to the Company, general
economic conditions, stock market conditions and other
future developments. The Company's transactions in the
Issuer's stock may be conducted on the open market,
through privately negotiated transactions or otherwise.
Except as otherwise set forth above, the Company has no
present plans or intentions which relate to or would
result in any of the actions described in paragraphs
(a) through (j) of Item 4.
Item 5. Interest In Securities of the Issuer
(a) The Company beneficially owns 1,334,072 shares of
the common stock of the Issuer which represents
Page 5 of 12
approximately 15.1% of the Issuer's total outstanding
common stock of 8,809,630 shares. Of the 1,334,072
shares that the Company beneficially owns, 222,345
shares is in the form of a warrant giving the Company
the right to purchase said number of shares at a
purchase price of $3.4469311 per share. To the best of
the Company's knowledge, none of the persons named in
Schedule I hereto own any common stock of the Issuer.
(b) The Company has the sole power to exercise the
warrant and the sole power to vote and to dispose of
all 1,334,072 shares of the common stock.
(c) The Company has not effected any transactions in
shares of the common stock during the past sixty days.
(d) No other person has the right to receive or the
power to direct the receipt of dividends from, or the
proceeds from the sale of, the shares of the common
stock beneficially owned by the Company.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect To Securities Of The Issuer.
On August 15, 1995 the Company and the Issuer entered
into a Convertible Note Purchase Agreement (the
"Purchase Agreement") pursuant to which the Issuer sold
and the Company purchased a convertible secured
promissory note of the Issuer in the amount of
$3,500,000 at an interest rate of 7.125 per cent per
annum (the "Note"). The Purchase Agreement and the
Note are enclosed herein as Exhibits 1 and 2,
respectively. Upon certain conditions and after
certain dates the terms of the Note provide that the
Note can be converted into shares of common stock of
the Issuer and a warrant to purchase additional shares
of common stock of the Issuer. A copy of the warrant
is enclosed herein as Exhibit 3.
On August 15, 1995 in conjunction with the Purchase
Agreement and the Note, the Issuer and the Company
entered into an Investor Rights Agreement (the "Rights
Agreement"). A copy of the Rights Agreement is
enclosed herein as Exhibit 4. The Rights Agreement
sets forth certain conditions under which, at the
Company's request, the Issuer will effect registration
under the Securities Act of 1933 of the shares of
Page 6 of 12
common stock that the Company receives upon conversion
of the Note or exercise of the warrant.
On November 26, 1996, the Company and the Issuer
amended the Note and the Rights Agreement as follows.
The Note was amended to allow the Company to convert
the Note to shares of common stock of the Issuer and a
warrant at the Company's discretion at any time after
November 15, 1996 (rather than December 31, 1996). In
addition, the amendment limited the number of shares
the Company could sell in any one 30 day period to one-
twelfth of the amount of shares issued to the Company.
The amendment to the Rights Agreement deleted several
grounds on which the Issuer could refuse to register
the shares of common stock issued to the Company. A
copy of the amendment to the Note and the Rights
Agreement is enclosed herein as Exhibit 5.
On December 13, 1996, the Company requested the Issuer
to convert the Note to shares of common stock of the
Issuer and a warrant. On or about January 10, 1997 the
Issuer issued to the Company 1,111,727 shares of its
common stock and a warrant in the form of Exhibit 3 to
purchase 222,345 shares of its common stock at a price
of $3.4469311 per share. On or about January 14, 1997
the Issuer filed with the Securities and Exchange
Commission a registration statement for said shares of
its common stock on Form S-3.
The description of the Purchase Agreement, Note,
warrant, Rights Agreement and the amendment to the Note
and the Rights Agreement contained hereinabove is a
summary only, is not intended to be complete and is
qualified in its entirety by reference to those
documents, copies of which are enclosed herein as
exhibits to this Schedule 13-D and incorporated herein
by this reference.
Except as set forth herein, neither the Company nor, to
the best of the Company's knowledge, any of the persons
named in Schedule I hereto has any contracts,
arrangements, understandings or relationships (legal or
otherwise) with respect to any securities of the
Issuer, including but not limited to any contracts,
arrangements, understandings or relationships
concerning the transfer or voting of such securities,
finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits,
division of profits or losses, or the giving or
withholding of proxies.
Page 7 of 12
Item 7. Materials To Be Filed As Exhibits
Exhibit 1. Convertible Note Purchase Agreement
between the Company and the Issuer,
dated August 15, 1995 (incorporated by
reference to Exhibit 10.35 of the
Issuer's Quarterly Report to the
Securities and Exchange Commission on
Form 10-Q for the quarterly period ended
September 30, 1995, File No. 0-19975).
Exhibit 2. Convertible Secured Promissory Note,
issued by the Issuer to the Company,
dated August 15, 1995 (incorporated by
reference to Exhibit 10.33 of the
Issuer's Quarterly Report to the
Securities and Exchange Commission on
Form 10-Q for the quarterly period ended
September 30, 1995, File No. 0-19975).
Exhibit 3. Warrant for the Purchase of Shares of
Common Stock issued by the Issuer to the
Company, dated as of December 13, 1996.
Exhibit 4. Investor Rights Agreement between the
Company and the Issuer, dated August 15,
1995 (incorporated by reference to
Exhibit 10.34 of the Issuer's Quarterly
Report to the Securities and Exchange
Commission on Form 10-Q for the
quarterly period ended September 30,
1995, File No. 0-19975).
Exhibit 5. Amendment to the Convertible Note
Purchase Agreement and the Investor
Rights Agreement, dated November 26,
1996.
Page 8 of 12
Signature
After reasonable inquiry into and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Date: January 14, 1997
Beckman Instruments, Inc.
By: /s/ D. K. Wilson
Dennis K. Wilson
Vice President, Finance
Chief Financial Officer
<PAGE>
Page 9 of 12
SCHEDULE I
Name & Business Address* Beckman Position Principal Employment &
Principal Business of
Employer
- ----------------------- ---------------- ----------------------
Earnest H. Clark, Jr. Director Chairman and Chief
5000 Birch Street Executive Officer of the
Suite 3000, 3rd Floor Friendship Group -
Newport Beach, CA 92660 investment partnership
Hugh K. Coble Director Vice Chairman of Fluor
3333 Michelson Drive, #339A Corporation -
Irvine, CA 92730 engineering and
construction company
Carolyne K. Davis, Ph.D. Director Advisor to Ernst & Young
1225 Connecticut Ave. N.W. - certified public
Room 2025 accountants
Washington, D.C. 20036
Dennis C. Fill Director Chairman and Chief
22100 Bothell Everett Highway Executive Officer of
Bothell, WA 98041 Advanced Technology
Laboratories, Inc. -
manufacturer of medical
ultrasound systems
James T. Glover** Executive Officer Vice President and
Controller of
Beckman Instruments,
Inc. - manufacturer
of laboratory
instrument systems and
related products
Paul Glyer** Executive Officer Treasurer of Beckman
Instruments, Inc. -
manufacturer of
laboratory instrument
systems and related
products
Charles A. Haggerty Director Chairman, President and
8105 Irvine Center Drive Chief Executive Officer
Irvine, CA 92718 of Western Digital
Corporation -
manufacturer of hard
disk drives
Page 10 of 12
Gavin S. Herbert Director Director of Allergan,
2525 Dupont Drive Inc. - provider of eye
Irvine, CA 92715 care and specialty
therapeutic products
Dr. William N. Kelley Director Chief Executive Officer
21 Penn Tower of the University of
3400 Spruce Street Pennsylvania Medical
Philadelphia, PA 19104 Center and Health
System, Dean of the
School of Medicine and
Executive Vice President
of the University
Francis P. Lucier Director Partner of Hartland &
Bank One Building, 12th floor Company - consultants
600 Superior Avenue East for management of
Cleveland, OH 44114 pension finance planning
policy
William H. May** Executive Officer Vice President, General
Counsel and Secretary of
Beckman Instruments,
Inc. - manufacturer of
laboratory instrument
systems and related
products
Fidencio M. Mares** Executive Officer Vice President, Human
Resources of Beckman
Instruments, Inc. -
manufacturer of
laboratory instrument
systems and related
products
C. Roderick O'Neil Director Chairman of O'Neil
32 Fairview Terrace Associates - investment
South Glastonbury, CT 06073 management consulting
firm
Louis T. Rosso** Executive Officer Chairman and Chief
and Director Executive Officer of
Beckman Instruments,
Inc. - manufacturer of
laboratory instrument
systems and related
products
Page 11 of 12
Bruce A. Tatarian** Executive Officer Vice President, Field
Operations - Emerging
Markets of Beckman
Instruments, Inc. -
manufacturer of
laboratory instrument
systems and related
products
Arthur A. Torrellas** Executive Officer Vice President, Field
Operations - North
America/Europe of
Beckman Instruments,
Inc. - manufacturer of
laboratory instrument
systems and related
products
John P. Wareham** Executive Officer President and Chief
and Director Operating Officer of
Beckman Instruments,
Inc. - manufacturer of
laboratory instrument
systems and related
products
Dennis K. Wilson** Executive Officer Vice President, Finance
and Chief Financial
Officer of Beckman
Instruments, Inc. -
manufacturer of
laboratory instrument
systems and related
products
Betty Woods Director President and Chief
7001 220th St. S.W. Bldg. 3 Executive Officer of
Mountlake Terrace, WA 98043 Blue Cross of Washington
and Alaska - health care
contractor
Albert R. Ziegler** Executive Officer Vice President,
Diagnostics Development
Center of Beckman
Instruments, Inc. -
manufacturer of
laboratory instrument
systems and related
products
Page 12 of 12
______________________________
* Except for Albert R. Ziegler, a citizen of Switzerland, and Dennis C.
Fill, a citizen of the United Kingdom and the United States, all of the
directors and executive officers are citizens of the United States.
** Business address is Beckman Instruments, Inc., 2500 Harbor Boulevard,
Fullerton, California 92834.
EXHIBIT 3
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES
ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED
UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS,
PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER
OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT
THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH
THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
BIOCIRCUITS CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. 1996-B1 222,345 shares
FOR VALUE RECEIVED, BIOCIRCUITS CORPORATION, a Delaware
corporation (the "Company"), with its principal office at
1324 Chesapeake Terrace, Sunnyvale, California 94089, hereby
certifies that Beckman Instruments, Inc. ("Holder"), or its
assigns, in consideration for payment of $100.00, is
entitled, subject to the provisions of this Warrant and
pursuant to the terms of that certain Convertible Secured
Promissory Note dated August 15, 1995, as amended, (the
"Note") to purchase from the Company, at any time before
5:00 p.m. (Pacific Standard Time) August 15, 2000 (the
"Expiration Date"), such number of fully paid and
nonassessable shares of Common Stock of the Company as set
forth above, subject to adjustment as hereinafter provided.
Holder may purchase such number of shares of Common
Stock at a purchase price per share of $3.4469311 (the
"Exercise Price"). The term "Common Stock" shall mean the
aforementioned Common Stock of the Company, together with
any other equity securities that may be issued by the
Company in addition thereto or in substitution therefor as
provided herein.
The number of shares of Common Stock to be received
upon the exercise of this Warrant and the price to be paid
for a share of Common Stock are subject to adjustment from
time to time as hereinafter set forth. The shares of Common
Stock deliverable upon such exercise, as adjusted from time
to time, are hereinafter sometimes referred to as "Warrant
Shares."
Section 1. EXERCISE OF WARRANT. This Warrant may be
exercised in whole or in part on any business day on or
prior to the Expiration Date by presentation and surrender
hereof to the Company at its principal office at the address
set forth in the initial paragraph hereof (or at such other
address as the Company may hereafter notify Holder in
writing) with the Purchase Form annexed hereto duly executed
and accompanied by proper payment of the Exercise Price in
lawful money of the United States of America in the form of
a check, subject to collection, for the number of Warrant
Shares specified in the Purchase Form. If this Warrant
should be exercised in part only, the Company shall, upon
surrender of this Warrant, execute and deliver a new Warrant
evidencing the rights of Holder thereof to purchase the
balance of the Warrant Shares purchasable hereunder. Upon
receipt by the Company of this Warrant and such Purchase
Form, together with proper payment of the Exercise Price, at
such office, Holder shall be deemed to be the Holder of
record of the Warrant Shares, notwithstanding that the stock
transfer books of the Company shall then be closed or that
certificates representing such Warrant Shares shall not then
be actually delivered to Holder. The Company shall pay any
and all documentary stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of the Warrant
Shares.
Section 2. RESERVATION OF SHARES. The Company hereby
agrees that at all times there shall be reserved for
issuance and delivery upon exercise of this Warrant all
shares of its Common Stock or other shares of capital stock
of the Company from time to time issuable upon exercise of
this Warrant. All such shares shall be duly authorized and,
when issued upon such exercise in accordance with the terms
of this Warrant, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, securities
interests, charges and other encumbrances or restrictions on
sale (other than as provided in the Company's certificate of
incorporation and any restrictions on sale set forth herein
or pursuant to applicable federal and state securities laws)
and free and clear of all preemptive rights.
Section 3. FRACTIONAL INTEREST. The Company will not
issue a fractional share of Common Stock upon exercise of a
Warrant. Instead, the Company will deliver its check for
the Exercise Price of the fractional share. The Exercise
Price of a fraction of a share is determined as follows:
multiply the Exercise Price of a full share by the fraction
of a share and round the result to the nearest cent.
Section 4. ASSIGNMENT OR LOSS OF WARRANT.
(a) Except as provided in Section 9, Holder shall
be entitled, without obtaining the consent of the Company,
to assign its interest in this Warrant in whole or in part
to any person or persons. Subject to the provisions of
Section 9, upon surrender of this Warrant to the Company or
at the office of its stock transfer agent or warrant agent,
with the Assignment Form annexed hereto duly executed and
funds sufficient to pay any transfer tax, the Company shall
without charge, execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees named in
such instrument of assignment (any such assignee will then
be a "Holder" for purposes of this Warrant) and, if Holder's
entire interest is not being assigned, in the name of
Holder, and this Warrant shall promptly be canceled.
(b) The Company shall issue a new Warrant in
place of any previously issued Warrant alleged to have been
lost, stolen or destroyed, upon such terms and conditions as
the Company's Board of Directors may prescribe, including
the presentation of reasonable evidence of such loss, theft
or destruction (provided that an affidavit of Holder will be
satisfactory for such purpose) and the giving of such
indemnity as the Company's Board of Directors may request
for the protection of the Company or transfer agent or
registrar (provided that the Holder's own indemnification
agreement in form reasonably satisfactory to the Company
shall under all circumstances be satisfactory, and no bond
shall be required). Upon surrender of any previously issued
Warrant that has been mutilated, the Company shall issue a
new Warrant in place thereof.
Section 5. RIGHTS OF HOLDER. Holder shall not, by
virtue hereof, be entitled to any rights of a stockholder in
the Company, either at law or equity, and the rights of
Holder are limited to those expressed in this Warrant.
Nothing contained in this Warrant shall be construed as
conferring upon Holder hereof the right to vote or to
consent or to receive notice as a stockholder of the Company
on any matters or with respect to any rights whatsoever as a
stockholder of the Company. No dividends or interest shall
be payable or accrued in respect of this Warrant or the
interest represented hereby or the Warrant Shares
purchasable hereunder until, and only to the extent that,
this Warrant shall have been exercised in accordance with
its terms.
Section 6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF
SHARES. The number and kind of securities purchasable upon
the exercise of this Warrant and the Exercise Price shall be
subject to adjustment from time to time upon the beginning
of certain events, as follows:
(a) Adjustment for Change in Capital Stock. If
at any time after December 13, 1996, the Company:
(A) pays a dividend or makes a distribution
on its Common Stock in shares of its
Common Stock;
(B) subdivides its outstanding shares of
Common Stock into a greater number of
shares;
(C) combines its outstanding shares of
Common Stock into a smaller number of
shares;
(D) makes a distribution on its Common Stock
in shares of its capital stock other
than Common Stock; or
(E) issues by reclassification of its Common
Stock any shares of its capital stock;
then the Exercise Price in effect immediately prior to such
action shall be adjusted so that Holder may receive upon
exercise of this Warrant and payment of the same aggregate
consideration the number of shares of capital stock of the
Company which Holder would have owned immediately following
such action if Holder had exercised this Warrant immediately
prior to such action.
The adjustment shall become effective immediately after
the record date in the case of a dividend or distribution
and immediately after the effective date in the case of a
subdivision, combination or reclassification.
(b) Minimum Adjustment. No adjustment in the Exercise
Price of this Section 6 shall be required unless such
adjustment would require an increase or decrease of at least
($.05) in such Exercise Price; provided, however, that any
adjustments which by reason of this subsection are not
required to be made, shall be carried forward and taken into
account in any subsequent adjustment. All calculations
under this Section 6 shall be made to the nearest cent or to
the nearest share, as the case may be.
(c) Deferral of Issuance or Payment. In any case in
which an event covered by this Section 6 shall require that
an adjustment in the Exercise Price be made effective as of
a record date, the Company may elect to defer until the
occurrence of such event (i) issuing to Holder, if this
Warrant is exercised after such record date, the shares of
Common Stock and other capital stock of the Company, if any,
issuable upon such exercise over and above the shares of
common stock or other capital stock of the Company, if any,
issuable upon such exercise on the basis of the Exercise
Price in effect prior to such adjustment, and (ii) paying to
Holder by check any amount in lieu of the issuance of
fractional shares pursuant to Section 3.
(d) When No Adjustment Required. No adjustment need
be made for a change in the par value or no par value of the
Common Stock. To the extent this Warrant becomes
exercisable into cash, no adjustment need be made thereafter
as to the cash, and interest will not accrue on the cash.
(e) Notice of Certain Actions. In the event that:
(A) the Company shall authorize the issuance to
all holders of its Common Stock of rights, warrants, options
or convertible securities to subscribe for or purchase
shares of its Common Stock or of any other subscription
rights, warrants, options or convertible securities; or
(B) the Company shall authorize the distribution
to all holders of its Common Stock of evidences of its
indebtedness or assets (other than dividends paid in or
distributions of the Company's capital stock for which the
Exercise Price shall have been adjusted pursuant to
subsection (a) of this Section 6 or cash dividends or cash
distributions payable out of consolidated current or
retained earnings as shown on the books of the Company and
paid in the ordinary course of business); or
(C) the Company shall authorize any capital
reorganization or reclassification of the Common Stock
(other than a subdivision or combination of the outstanding
Common Stock and other than a change in par value of the
Common Stock) or of any consolidation or merger to which the
Company is a party and for which approval of any
stockholders of the Company is required (other than a
consolidation or merger in which the Company is the
continuing corporation and that does not result in any
reclassification or change of the Common Stock outstanding),
or of the conveyance or transfer of the properties and
assets of the Company as an entirety or substantially as an
entirety; or
(D) the Company is the subject of a voluntary or
involuntary dissolution, liquidation or winding-up
procedure; or
(E) the Company proposes to take any action
(other than actions of the character described in subsection
(a) of this Section 6) that would require an adjustment of
the Exercise Price pursuant to this Section 6;
the Company shall cause to be mailed by first-class mail to
Holder, at least twenty (20) days prior to the applicable
record or effective date hereinafter specified, a notice
stating (x) the date as of which the holders of Common Stock
of record to be entitled to receive any such rights,
warrants or distributions are to be determined, or (y) the
date on which any such consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding-up is expected
to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or
other property, if any, deliverable upon such
reorganization, reclassification, consolidation, merger,
conveyance, transfer, dissolution, liquidation or winding-
up.
(f) No Adjustment Upon Exercise of Warrant. No
adjustments shall be made under any Section herein in
connection with the issuance of Warrant Shares after
exercise of this Warrant.
Section 7. OFFICERS' CERTIFICATE. Whenever the
Exercise Price shall be adjusted as required by the
provisions of Section 6, the Company shall forthwith file in
the custody of its Secretary or an Assistant Secretary at
its principal office and officers' certificate showing the
adjusted Exercise Price determined as herein provided,
setting forth in reasonable detail the facts requiring such
adjustment and the manner of computing such adjustment.
Each such officers' certificate shall be signed by the
chairperson, president or chief financial officer of the
Company and by the secretary or any assistant secretary of
the Company. Each such officers' certificate shall be made
available at all reasonable times for inspection by Holder.
Section 8. RECLASSIFICATION, REORGANIZATION,
CONSOLIDATION OR MERGER. In the event of any
reclassification, capital reorganization or other change of
outstanding shares of Common Stock of the Company (other
than a subdivision or combination of the outstanding Common
Stock and other than a change in the par value of the Common
Stock) or in the event of any consolidation or merger of the
Company with or into another corporation (other than a
merger in which the Company is the continuing corporation
and that does not result in any reclassification, capital
reorganization or other change of outstanding shares of
Common Stock of the class issuable upon exercise of this
Warrant) or in the event of any sale, lease, transfer or
conveyance to another corporation of the property and assets
of the Company as an entirety or substantially as an
entirety, the Company shall, as a condition precedent to
such transaction, cause effective provisions to be made so
that Holder shall have the right thereafter, by exercising
this Warrant, to purchase the kind and amount of shares of
stock and other securities and property (including cash)
receivable upon such reclassification, capital
reorganization and other change, consolidation, merger, sale
or conveyance by a holder of the number of shares of Common
stock that might have been received upon exercise of this
Warrant immediately prior to such reclassification, capital
reorganization, change, consolidation, merger, sale or
conveyance. Any such provisions shall include provisions
for adjustments in respect of such shares of stock and other
securities and property that shall be as nearly equivalent
as may be practicable to the adjustments provided for in
this Warrant. The foregoing provisions of this Section 8
shall similarly apply to successive reclassifications,
capital reorganizations and changes of shares of Common
Stock and to successive consolidations, mergers, sales or
conveyances. In the event that in connection with any such
capital reorganization, or reclassification, consolidation,
merger, sale or conveyance, additional shares of Common
Stock shall be issued in exchange, conversion, substitution
or payment, in whole or in part, for, or of, a security of
the Company other than Common Stock, any such issue shall be
treated as an issue of Common Stock covered by the
provisions of subsection (a) of Section 6.
Section 9. TRANSFER TO COMPLY WITH THE SECURITIES ACT
OF 1933. This Warrant may not be exercised and neither this
Warrant nor any of the Warrant Shares, nor any interest in
either, may be offered, sold, assigned, pledged,
hypothecated, encumbered or in any other manner transferred
or disposed of, in whole or in part, except in compliance
with applicable United States federal and state securities
or blue sky laws and the terms and conditions hereof. Each
Warrant shall bear a legend in substantially the same form
as the legend set forth on the first page of this Warrant.
Each certificate for Warrant Shares issued upon exercise of
this Warrant, unless at the time of exercise such Warrant
Shares are acquired pursuant to a registration statement
that has been declared effective under the Act and
applicable blue sky laws, shall bear a legend substantially
in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF
THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN
COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
Any certificate for any Warrant Shares issued at any time in
exchange or substitution for any certificate for any Warrant
Shares bearing such legend (except a new certificate for any
Warrant Shares issued after the acquisition of such Warrant
Shares pursuant to a registration statement that has been
declared effective under the Act) shall also bear such
legend unless, in the opinion of counsel for the Company,
the Warrant Shares represented thereby need no longer be
subject to the restriction contained herein. The provision
of this Section 9 shall be binding upon all subsequent
holders of certificates for Warrant Shares bearing the above
legend and all subsequent holders of this Warrant, if any.
Section 10. MODIFICATION AND WAIVER. Neither this
Warrant nor any term hereof may be changed, waived,
discharged or terminated other than by an instrument in
writing signed by the Company and by Holder.
Section 11. NOTICES. All notices, requests, consents
and other communications hereunder shall be in writing,
shall be sent by confirmed facsimile or mailed by first-
class registered or certified airmail, or nationally
recognized overnight express courier, postage prepaid, and
shall be deemed given when so sent and addressed as follows:
(i) if to the Company, to:
Biocircuits Corporation
1324 Chesapeake Terrace
Sunnyvale, California 94089
Attention: Donald B. Hawthorne
Chief Financial Officer
Facsimile No.: (408) 752-8790
with a copy so mailed to:
Cooley Godward LLP
Five Palo Alto Square
Palo Alto, California 94306-2155
Attention: Deborah A. Marshall, Esq.
Facsimile No.: (415) 857-0663
or to such other person at such other place
as the Company shall designate to Purchaser in
writing; and
(ii) if to Purchaser, to:
Beckman Instruments, Inc.
2500 Harbor Boulevard
Fullerton, California 92834
Attention: Treasurer
Facsimile No.: (714) 773-8111
with a copy so mailed to the General Counsel
of Beckman Instruments, Inc. at the above address
or at such other address or addresses as may have
been furnished to the Company in writing.
Section 12. DESCRIPTIVE HEADINGS AND GOVERNING LAW.
The description headings of the several sections and
paragraphs of this Warrant are inserted for convenience only
and do not constitute a part of this Warrant. This Warrant
shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the
State of California, without regard to its conflicts of laws
principles.
IN WITNESS WHEREOF, the Company has duly caused this
Warrant to be signed by its duly authorized officer and to
be dated as of December 13, 1996.
BIOCIRCUITS CORPORATION
By: /s/ John Kaiser
John Kaiser
Chief Executive Officer
<PAGE>
PURCHASE FORM
Dated____________, 199__
The undersigned hereby irrevocably elects to exercise
the within Warrant, No. 199_-___, to purchase _______ shares
of Common Stock and hereby makes payment of $______________
in payment of the exercise price thereof.
BECKMAN INSTRUMENTS, INC.
By:__________________________
Louis T. Rosso
Chief Executive Officer
<PAGE>
ASSIGNMENT FORM
Dated____________, 199_
FOR VALUE RECEIVED, Beckman Instruments, Inc. hereby
sells, assigns and transfers unto __________________________
________________________________________ (the "Assignee"),
(please type or print in block letters)
____________________________________________________________
(insert address)
its right to purchase up to _________ shares of Common Stock
represented by this Warrant, No. 199__-____, and does hereby
irrevocably constitute and appoint _________________________
attorney, to transfer the same on the books of the Company,
with full power of substitution in the premises.
BECKMAN INSTRUMENTS, INC.
By:__________________________
Louis T. Rosso
Chief Executive Officer
Exhibit 5
BECKMAN INSTRUMENTS, INC.
2500 Harbor Boulevard, Box 3100
Fullerton, CA 92834-3100
CONFIDENTIAL LETTER OF UNDERSTANDING
Via Overnight Delivery
November 26, 1996
Mr. Donald B. Hawthorne
Vice President and CFO
Biocircuits Corporation
1324 Chesapeake Terrace
Sunnyvale, CA 94089
RE: AMENDMENTS TO AGREEMENTS
Dear Don:
In October, 1996 Biocircuits Corporation completed a round of
equity financing in excess of $3,250,000 (the "October Equity
Financing"). This event satisfied a condition precedent set
forth in Section 8 of Biocircuits' Convertible Secured Promissory
Note (the "Note") held by Beckman dated August 15, 1995 which
gave Beckman the right to convert the Note to Biocircuits' stock
and warrants. In consideration for Beckman waiving that right,
Biocircuits agreed to make certain changes in the Note and the
related Investment Rights Agreement between the parties dated
August 15, 1995 ("Rights Agreement"). These changes are set
forth below.
Note
- ----
1. With respect to the October Equity Financing only, Beckman
waives its rights to convert the Note granted by Section 8
of the Note.
2. The December 31, 1996 date in Section 9 of the Note is
changed to November 15, 1996.
3. In any 30 day period after the conversion by Beckman of the
Note into Biocircuits' equity, Beckman covenants not to sell
more than one-twelfth (the "Allotment Shares") of the total
number of shares issued by Biocircuits to Beckman upon such
conversion. If, however, in any subsequent 30 day period,
Beckman fails to sell any portion of the Allotment Shares
from the prior 30 day period, then Beckman may sell up to
<PAGE>
Mr. Donald B. Hawthorne
November 26, 1996
Page 2
one-sixth of the total number of shares issued to Beckman in
such subsequent 30 day period. In no event, however, may
Beckman sell more than one-sixth of the shares issued to it
by Biocircuits in any 30 day period.
Rights Agreement
- ----------------
1. Clauses (ii), (iv) and (v) of Section 2.2.2 are deleted.
2. Clause (iii) of Section 2.2.2 is amended to read in its
entirety as follows:
"(iii)
(x) for the period prior to and including December 15, 1996,
if the Company shall furnish to the Holders a certificate
signed by the Chairman of the Board of Directors of the
Company stating that in the good faith judgment of the Board
of Directors of the Company, the requested filing of a Form
S-3 at such time would have a material adverse effect on the
Company and its stockholders; provided, however, that the
Company will not initiate, take or support any action that
would, in the good faith judgment of the Board of Directors,
cause such material adverse effect to occur, or
(y) for the period after December 15, 1996, if the Company
shall furnish to the Holders a certificate signed by the
Chairman of the Board of Directors of the Company stating
that in the good faith judgment of the Board of Directors of
the Company, the requested filing of a Form S-3 at such time
would have a material adverse effect on the Company;
provided, however, that if either of the events specified in
this clause (iii)(x) or (y) shall occur, then in such event,
the Company shall have the right to defer the filing of the
Form S-3 registration statement for a period of not more
than ninety (90) days after receipt of the request of the
initiating Holders under this Section 2.2; provided,
further, that such right to delay a request shall be
exercised by the Company not more than twice in any one-year
period, and in any event not consecutively with respect to
any one request.
3. Registrable Securities includes Common Stock issued upon
conversion of the Note, subject to the terms and conditions
of Section 2.2 of the Rights Agreement, including the
revisions of Section 2.2.2 set forth above.
<PAGE>
Mr. Donald B. Hawthorne
November 26, 1996
Page 3
All other terms and conditions of the Agreements between our
companies remain unchanged. The existing Agreements provide for
registration rights for Beckman's shares.
Please sign both copies of this Confidential Letter of
Understanding below where indicated for your signature and return
one originally-executed copy to me at your earliest convenience.
Your signature will indicate your acceptance of the terms
contained herein.
Sincerely,
/s/ Paul Glyer
Paul Glyer
Treasurer
/dd
I agree to the terms contained in this Confidential Letter of
Understanding.
Biocircuits Corporation
By: /s/ Donald B. Hawthorne
Name: Donald B. Hawthorne
Title: CFO
Date: 11/29/96
