1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 11, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SYBRON INTERNATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
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WISCONSIN 3843 22-2849508
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) 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)
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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
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the Registration Statement becomes
effective and all conditions prerequisite have been satisfied or waived.
If any of the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1)(4)(5) PER UNIT(1) OFFERING PRICE(2) REGISTRATION FEE(3)(5)
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Common Stock, par value $0.01 per
share.......................... 4,667,000 shs. N/A (2) $2,426
=================================================================================================================================
(1) Under the Agreement and Plan of Reorganization (the "Reorganization
Agreement") to which this Registration Statement relates, outstanding shares
of LRS Acquisition Corp. ("LRS") Common Stock and Preferred Stock will be
converted into, and outstanding options and an outstanding warrant to
acquire LRS Common Stock will be exchanged for, shares of Sybron
International Corporation ("Sybron") Common Stock based on the average
closing sale price of Sybron Common Stock on the New York Stock Exchange for
the 30 consecutive trading days ending with the fifth trading day prior to
the Closing Date, as provided in the Reorganization Agreement. Since the
number of shares of Sybron Common Stock to be issued will not be determined
until the Closing Date, the number of shares registered hereby is an
arbitrary number intended to be more than sufficient to cover the maximum
number that could be issued under the pricing formula.
(2) Estimated pursuant to Rule 457(f)(2) under the Securities Act of 1933,
solely for the purpose of calculating the registration fee, based on the
book value of the LRS securities to be acquired by Sybron in the
transaction, computed as of January 31, 1998, as adjusted to add the
redemption value of the Preferred Stock to the amount of the stockholders'
deficit shown on the balance sheet, resulting in adjusted stockholders'
equity of LRS in the amount of $8,222,000.
(3) Includes the fee of $1,682 paid to the Commission on February 24, 1998, upon
filing of preliminary materials with respect to this transaction. Pursuant
to Rule 457(b), the $744 balance of the registration fee is being paid to
the Commission upon filing of this Registration Statement.
(4) To the extent that less than the maximum number of shares registered hereby
are issued pursuant to the Reorganization Agreement, Sybron may use the
remaining shares to cover the exercise of any LRS stock options assumed
pursuant to the Reorganization Agreement, by filing one or more
post-effective amendments hereto on the appropriate registration form.
(5) This Registration Statement may also cover the public reoffering of the
securities registered hereunder by persons who may be deemed to be
underwriters through the use of a separate reoffering prospectus included in
a post-effective amendment hereto on Form S-3, with no additional
registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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LRS ACQUISITION CORP.
9900 OLD GROVE ROAD
SAN DIEGO, CALIFORNIA 92131-1683
March 12, 1998
Dear Stockholder:
You are cordially invited to attend a Special Meeting of the Stockholders
of LRS Acquisition Corp. ("LRS") to be held on Thursday, April 9, 1998, at the
principal offices of LRS Acquisition Corp., 9900 Old Grove Road, San Diego,
California, at 9:00 a.m., local time. At the Special Meeting, you will be
asked to approve an Agreement and Plan of Reorganization, dated as of January
23, 1998, by and among Sybron International Corporation ("Sybron"), Normandy
Acquisition Co. ("Acquisition"), LRS and Liberty Partners Holdings 5, L.L.C.
(the "Reorganization Agreement"). The Reorganization Agreement provides for
the acquisition of LRS by Sybron through the merger of Acquisition, a wholly
owned subsidiary of Sybron, with and into LRS (the "Merger").
Upon consummation of the Merger, all outstanding shares of LRS Common Stock
and LRS Preferred Stock will be converted into, and outstanding options and an
outstanding warrant to acquire LRS Common Stock will be exchanged for, shares
of Sybron Common Stock. The exchange ratios will be determined under formulas
based on the values assigned to the various LRS securities and the average
closing sale price per share of Sybron Common Stock on the New York Stock
Exchange for the 30 consecutive trading days ending with the fifth trading day
prior to the Closing Date (the "Average Sybron Stock Price"), as provided in
the Reorganization Agreement and described in the attached Proxy
Statement/Prospectus. Any resulting fractional share interests will be paid in
cash. If the Merger had been consummated as of the date of the Reorganization
Agreement, when the Average Sybron Stock Price would have been $22.96145, each
outstanding share of Series A Preferred Stock would have been converted into
43.7739571 shares of Sybron Common Stock, each outstanding share of Series B
Preferred Stock would have been converted into 58.20405 shares of Sybron Common
Stock, each outstanding share of unrestricted LRS Common Stock would have been
converted into 325.0008 shares of Sybron Common Stock, and each outstanding
Nonvested Restricted Share of LRS Common Stock would have been converted into
234.43598 shares of Sybron Common Stock. The LRS Warrant would have been
exchanged for 641,291 shares of Sybron Common Stock, and each LRS Option,
assuming all of the outstanding LRS Options were exchanged, would have been
exchanged for 226.16124 shares of Sybron Common Stock for each share of LRS
Common Stock issuable upon exercise of such option (assuming 100% vesting). The
actual exchange ratios will be determined by the Average Sybron Stock Price and
the other elements of the formulas determining the exchange ratios at the time
the Merger is consummated. If the Average Sybron Stock Price is greater than
$27.625, LRS, and if the Average Sybron Stock Price is less than $18.4375, LRS
or Sybron, shall have the right but not the obligation to terminate the
Reorganization Agreement prior to Closing.
THE BOARD OF DIRECTORS OF LRS HAS CAREFULLY CONSIDERED THE TERMS OF THE
REORGANIZATION AGREEMENT AND BELIEVES THAT THE MERGER IS ADVISABLE, FAIR
AND IN THE BEST INTERESTS OF LRS AND ITS SECURITYHOLDERS AND UNANIMOUSLY
RECOMMENDS THAT THE STOCKHOLDERS VOTE FOR THE APPROVAL OF THE REORGANIZATION
AGREEMENT. Holders of LRS Common Stock will receive shares of Sybron Common
Stock in a tax-free reorganization having a market value representing a
significant premium to LRS' book value. Sybron Common Stock is actively traded
on the New York Stock Exchange. Consequently, the stockholders of LRS will
have their shares converted into a publicly traded security representing
ownership in a significantly larger and more diversified enterprise.
The attached Proxy Statement/Prospectus describes the Reorganization
Agreement, the Merger, and related transactions. The Reorganization Agreement
is attached as Appendix A to the Proxy Statement/Prospectus. Information
concerning LRS, Sybron and Acquisition is also provided in the Proxy
Statement/Prospectus or incorporated by reference and available upon request.
The consummation of the Merger is subject to the satisfaction of certain
conditions. Before the Merger is consummated, you will receive instructions
concerning the exchange of your LRS securities. PLEASE DO NOT REMIT YOUR
CERTIFICATES UNTIL YOU RECEIVE THOSE INSTRUCTIONS.
The affirmative vote of the holders of the majority of the outstanding
shares of LRS Common Stock, 75% of the outstanding shares of LRS Preferred
Stock, and 75% of the outstanding shares of LRS Common Stock held by the
original investors in LRS, is required to approve and adopt the Reorganization
Agreement. As described in the Proxy Statement/Prospectus, the holders of more
than the requisite amount of shares have indicated that they intend to vote for
the Reorganization Agreement. Failure to execute and return the accompanying
proxy card or to vote in person at the Special Meeting will have the effect of
a vote cast against approval of the Reorganization Agreement. To be sure that
your shares are represented in voting on this very important matter, please
complete and return the accompanying proxy card promptly in the enclosed
envelope, whether or not you plan to attend the Special Meeting. If you do
attend, you may, if you wish, revoke your proxy and vote your shares in person
at the Special Meeting.
Very truly yours,
Gordon Nye
President and Chief Executive Officer
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LRS ACQUISITION CORP.
9900 OLD GROVE ROAD
SAN DIEGO, CALIFORNIA 92131-1683
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NOTICE OF SPECIAL MEETING
OF STOCKHOLDERS TO BE HELD
ON APRIL 9, 1998
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To the Stockholders of
LRS Acquisition Corp.:
A special meeting of the stockholders of LRS Acquisition Corp. ("LRS")
will be held at the principal offices of LRS Acquisition Corp., 9900 Old Grove
Road, San Diego, California, on Thursday, April 9, 1998 at 9:00 a..m., local
time (the "Special Meeting"), for the following purposes:
(1) To consider and vote upon the approval and adoption
of the Agreement and Plan of Reorganization, dated as of January 23,
1998, by and among Sybron International Corporation ("Sybron"),
Normandy Acquisition Co. ("Acquisition"), LRS and Liberty Partners
Holdings 5, L.L.C. (the "Reorganization Agreement"), providing for the
merger of Acquisition with and into LRS (the "Merger"), pursuant to
which each issued and outstanding share of LRS Common Stock and LRS
Preferred Stock will be converted into, and outstanding options and an
outstanding warrant to acquire LRS Common Stock will be exchanged for,
shares of Sybron Common Stock, plus cash in lieu of any fractional
share, all as described and set forth in the Proxy Statement/Prospectus
accompanying this notice (to which a copy of the Reorganization
Agreement is attached as Appendix A); and
(2) To act upon such other matters as may properly come
before the Special Meeting or any adjournment thereof.
Only holders of record of LRS Common Stock and LRS Preferred Stock at
the close of business on March 9, 1998 are entitled to notice of and to vote at
the Special Meeting. The affirmative vote of the holders of a majority of the
outstanding shares of LRS Common Stock, 75% of the outstanding shares of LRS
Preferred Stock, and 75% of the outstanding shares of LRS Common Stock held by
the original investors in LRS, is required for approval and adoption of the
Reorganization Agreement. As described in the Proxy Statement/Prospectus, the
holders of more than the requisite amount of shares have indicated that they
intend to vote for the Reorganization Agreement.
Under Delaware law, appraisal rights are available to holders of
record of LRS Common Stock and LRS Preferred Stock who object to the Merger.
If you object to the Merger and desire to be paid in cash the fair value of
your shares, you must deliver to LRS, before the taking of the vote on the
Merger, a written demand for appraisal of your shares, you must not vote in
favor of the Merger, and you must otherwise comply with the procedures set
forth in Section 262 of the Delaware General Corporation Law, a copy of which
is attached to the Proxy Statement/Prospectus as Appendix B. Pursuant to the
terms of the Amended and Restated Stockholders Agreement of LRS dated as of
June 13, 1994 (the "LRS Stockholders Agreement"), holders of shares of LRS
Common Stock subject thereto must waive any dissenters, appraisal or similar
rights with respect to the Merger if the Merger is approved by holders of a
majority of the shares of LRS Common Stock covered thereby. Holders of
approximately 91.2% of the outstanding shares of LRS Common Stock are parties
to the LRS Stockholders Agreement. It is a condition to Sybron's obligation to
consummate the Merger that appraisal rights not be asserted with respect to
more than 2% of the outstanding shares of LRS Common Stock or more than 2% of
the outstanding shares of LRS Preferred Stock.
By Order of the Board of Directors,
David J. Milner
Secretary
San Diego, California
March 12, 1998
YOUR VOTE IS IMPORTANT REGARDLESS OF THE NUMBER OF SHARES YOU OWN. WHETHER OR
NOT YOU EXPECT TO ATTEND THE SPECIAL MEETING, PLEASE SIGN, DATE AND PROMPTLY
RETURN THE ACCOMPANYING PROXY CARD USING THE ENCLOSED SELF-ADDRESSED ENVELOPE,
WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES. IF FOR ANY REASON
YOU SHOULD DESIRE TO REVOKE YOUR PROXY, YOU MAY DO SO AT ANY TIME BEFORE IT IS
VOTED AT THE SPECIAL MEETING.
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PROXY STATEMENT
OF
LRS ACQUISITION CORP.
FOR
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON APRIL 9, 1998
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PROSPECTUS
OF
SYBRON INTERNATIONAL CORPORATION
This Proxy Statement/Prospectus relates to the proposed merger (the
"Merger") of Normandy Acquisition Co., a Delaware corporation ("Acquisition")
and a wholly owned subsidiary of Sybron International Corporation, a Wisconsin
corporation ("Sybron"), with and into LRS Acquisition Corp., a Delaware
corporation ("LRS"), and is being furnished to the stockholders of LRS in
connection with the solicitation of proxies by the LRS Board of Directors (the
"LRS Board") for use at the special meeting of LRS stockholders (the "Special
Meeting") to be held at the principal offices of LRS Acquisition Corp., 9900
Old Grove Road, San Diego, California, on Thursday, April 9, 1998 at 9:00
a..m., local time, and at any adjournment or postponement thereof.
This Proxy Statement/Prospectus also constitutes a prospectus of
Sybron filed as part of the Registration Statement (defined below) with respect
to the shares of Common Stock, $0.01 par value per share, of Sybron ("Sybron
Common Stock") to be issued pursuant to an Agreement and Plan of
Reorganization, dated as of January 23, 1998, by and among Sybron, Acquisition,
LRS and Liberty Partners Holdings 5, L.L.C. ("Liberty") (the "Reorganization
Agreement"). The actual number of shares of Sybron Common Stock to be issued
pursuant to the Reorganization Agreement will be determined by the average
closing sale price per share of Sybron Common Stock on the New York Stock
Exchange for the 30 consecutive trading days ending with the fifth trading day
prior to the Closing Date of the Merger and the other elements of the pricing
formulas provided in the Reorganization Agreement to determine the exchange
ratios for the conversion or exchange of the LRS securities outstanding
immediately before the Merger. If the Merger had been consummated as of the
date of the Reorganization Agreement, when the Average Sybron Stock Price would
have been $22.96145, approximately 3,747,351 shares of Sybron Common Stock
would have been issuable pursuant to the Reorganization Agreement. See "The
Merger -- General."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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No person is authorized to give any information or to make any
representation other than those contained or incorporated by reference in this
Proxy Statement/Prospectus, and if given or made, such information or
representation should not be relied upon as having been authorized. This Proxy
Statement/Prospectus does not constitute an offer to sell, or a solicitation of
an offer to purchase, the securities offered by this Proxy
Statement/Prospectus, in any jurisdiction, to or from any person to whom or
from whom it is unlawful to make such offer or solicitation of an offer in such
jurisdiction. Neither the delivery of this Proxy Statement/Prospectus nor any
distribution of the securities pursuant to this Proxy Statement/Prospectus
shall, under any circumstances, create an implication that there has been no
change in the affairs of Sybron, Acquisition or LRS or in the information set
forth herein since the date of this Proxy Statement/Prospectus.
This Proxy Statement/Prospectus does not cover any resale of the
securities to be received by securityholders of LRS upon consummation of the
proposed transaction, and no person is authorized to make any use of this Proxy
Statement/Prospectus in connection with any such resale.
The date of this Proxy Statement/Prospectus is March 12, 1998. This
Proxy Statement/Prospectus is first being mailed to stockholders of LRS on or
about March 12, 1998.
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AVAILABLE INFORMATION
Sybron 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 filed 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.
Sybron 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. Sybron Common Stock (symbol
"SYB") is listed on the New York Stock Exchange (the "NYSE"), and such reports,
statements and other information concerning Sybron should also be available for
inspection at the offices of the NYSE, 20 Broad Street, New York, New York
10005. LRS is not subject to the informational requirements of the Exchange
Act and its securities do not trade in any public market.
Sybron has filed with the SEC under the Securities Act of 1933, as
amended (the "Securities Act"), a registration statement on Form S-4 (together
with all amendments, schedules and exhibits thereto, the "Registration
Statement") with respect to the shares of Sybron Common Stock issuable pursuant
to the Reorganization Agreement. This Proxy Statement/Prospectus does not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
SEC. The Registration Statement is available for inspection and copying as set
forth above. Statements contained in this Proxy Statement/Prospectus or in any
document incorporated by reference in this Proxy Statement/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 PROXY STATEMENT/PROSPECTUS INCORPORATES BY REFERENCE DOCUMENTS
RELATING TO SYBRON WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE
DOCUMENTS ARE AVAILABLE UPON REQUEST FROM SYBRON, AT ITS PRINCIPAL EXECUTIVE
OFFICES, AT 411 EAST WISCONSIN AVENUE, MILWAUKEE, WISCONSIN 53202, ATTENTION:
TRICIA MINTZLAFF, INVESTOR RELATIONS (TELEPHONE: (414) 274-6600). IN ORDER TO
ENSURE TIMELY DELIVERY OF THE DOCUMENTS PRIOR TO THE SPECIAL MEETING, ANY
REQUEST SHOULD BE MADE BY APRIL 2, 1998.
Sybron will provide without charge to each person, including any
beneficial owner, to whom a copy of this Proxy Statement/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 person indicated above.
The following document(s) previously filed by Sybron with the SEC
pursuant to the Exchange Act (File No. 1-11091) are incorporated in this Proxy
Statement/Prospectus by reference:
1. Sybron's Annual Report on Form 10-K for the year ended
September 30, 1997 (which incorporates certain portions of Sybron's
Proxy Statement dated December 23, 1997 for its Annual Meeting of
Shareholders on January 30, 1998); and
2. Sybron's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1997.
In lieu of incorporating by reference the description of Sybron Common
Stock contained in Sybron's Registration Statement on Form 8-B dated January
13, 1994, such description is included in this Proxy Statement/Prospectus. See
"Description of Sybron Capital Stock."
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All documents filed by Sybron pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the date on which
the Special Meeting is held 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 Sybron contained in this Proxy
Statement/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 Proxy Statement/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 Proxy
Statement/Prospectus.
FORWARD-LOOKING STATEMENTS; CAUTIONARY FACTORS. This Proxy
Statement/Prospectus and the documents incorporated by reference herein may
contain forward-looking statements made by or on behalf of Sybron or LRS,
respectively. 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 Sybron's actual results to differ materially from those contemplated in
the forward-looking statements include factors described under the caption
"Cautionary Factors" in the Sybron documents incorporated herein by reference.
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The information contained in this Proxy Statement/Prospectus with
respect to Sybron and Acquisition has been supplied by Sybron. The information
contained herein with respect to LRS has been supplied by LRS.
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TABLE OF CONTENTS
PAGE
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AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . . . . . . . . 2
SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The Parties to the Reorganization . . . . . . . . . . . . . . . . . 7
The Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . 9
The Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Comparison of Shareholder Rights . . . . . . . . . . . . . . . . . . 13
Selected Financial Data . . . . . . . . . . . . . . . . . . . . . . 14
Sybron Unaudited Pro Forma Combined Financial Data . . . . . . . . . 18
Comparative Per Share Data . . . . . . . . . . . . . . . . . . . . . 20
Market Price Data . . . . . . . . . . . . . . . . . . . . . . . . . 21
Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . 22
THE SPECIAL MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Place, Time and Date . . . . . . . . . . . . . . . . . . . . . . . . 23
Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Record Date; Shares Entitled to Vote . . . . . . . . . . . . . . . . 23
Vote Required for Approval . . . . . . . . . . . . . . . . . . . . . 23
Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Dissenters' Rights . . . . . . . . . . . . . . . . . . . . . . . . . 24
THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Conversion and Exchange of Outstanding LRS Securities . . . . . . . 26
Gross Merger Price Adjustments . . . . . . . . . . . . . . . . . . . 29
Background of the Merger . . . . . . . . . . . . . . . . . . . . . . 30
Reasons for the Merger; Recommendation of the LRS Board . . . . . . 31
Interest of Certain Persons in the Merger . . . . . . . . . . . . . 32
Management and Operations of LRS After the Merger . . . . . . . . . 34
Conduct of Business Pending the Merger . . . . . . . . . . . . . . . 34
Representations, Warranties and Covenants . . . . . . . . . . . . . 35
Conditions to Consummation of the Merger . . . . . . . . . . . . . . 36
Exclusive Dealing . . . . . . . . . . . . . . . . . . . . . . . . . 37
Termination; Amendment; Waiver . . . . . . . . . . . . . . . . . . . 37
LRS Representatives . . . . . . . . . . . . . . . . . . . . . . . . 38
Indemnity; Escrow Agreement . . . . . . . . . . . . . . . . . . . . 38
Exchange of LRS Certificates; No Fractional Shares . . . . . . . . . 40
Regulatory Requirements . . . . . . . . . . . . . . . . . . . . . . 42
Certain Federal Income Tax Consequences . . . . . . . . . . . . . . 43
Resale of Sybron Common Stock . . . . . . . . . . . . . . . . . . . 44
Accounting Treatment . . . . . . . . . . . . . . . . . . . . . . . . 45
BUSINESS OF SYBRON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Operating Strategies . . . . . . . . . . . . . . . . . . . . . . . . 46
4
8
Certain Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
BUSINESS, MANAGEMENT AND SECURITYHOLDERS OF LRS . . . . . . . . . . . . . . . . . . . . . . . . 49
Organization and Commencement of Operations . . . . . . . . . . . . . . . . . . . . . 49
General Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Historical Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Marketing and Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Manufacturing and Sourcing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Facilities and Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Market Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Market Information and Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Principal Stockholders and Security Ownership of Management of LRS . . . . . . . . . 55
Directors and Executive Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Interests of Management and Certain Other Transactions . . . . . . . . . . . . . . . . 58
MANAGEMENT'S DISCUSSION AND ANALYSIS OF LRS'
FINANCIAL CONDITION AND RESULTS OF OPERATIONS. . . . . . . . . . . . . . . . . . . . . 59
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Results of Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Year Ended December 31, 1997
Compared to the Year Ended December 31, 1996 . . . . . . . . . . . . . . . . . . 60
Year Ended December 31, 1996
Compared to the Year Ended December 31, 1995 . . . . . . . . . . . . . . . . . . 60
Liquidity And Capital Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Impact of Year 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Impact of Inflation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
DESCRIPTION OF SYBRON CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Certain Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
COMPARISON OF SHAREHOLDER RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Comparison of Sybron Articles and Bylaws to LRS Certificate and Bylaws . . . . . . . . 65
Comparison of Delaware and Wisconsin Law . . . . . . . . . . . . . . . . . . . . . . . 71
Certain Contractual Rights of LRS Securityholders . . . . . . . . . . . . . . . . . . 76
RIGHTS OF DISSENTING STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
CERTAIN INFORMATION CONCERNING SYBRON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
LEGAL OPINIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
OTHER MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
5
9
PAGE
----
INDEX TO LRS FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
APPENDIX A - Agreement and Plan of Reorganization . . . . . . . . . . . . . . . . . . . . . . . A-1
APPENDIX B - Section 262 of the Delaware General Corporations Law--Appraisal Rights . . . . . . B-1
APPENDIX C - Example of Calculation of Merger Price and Exchange Ratios . . . . . . . . . . . . C-1
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SUMMARY
The following summary information is qualified by reference to, and
should be read in conjunction with, the more detailed information appearing
elsewhere in this Proxy Statement/Prospectus, including the Appendices and the
documents incorporated herein by reference. Unless otherwise indicated, all
financial and other data in this Proxy Statement/Prospectus have been restated
to give retroactive effect to stock splits, including Sybron's two-for-one
stock split in the form of a 100% share dividend effected on February 20, 1998
(the "Sybron 1998 Stock Split"). However, data in Sybron's Annual Report on
Form 10-K for the year ended September 30, 1997 do not reflect the Sybron 1998
Stock Split, which was declared after the 10-K was filed. Capitalized terms
used and not otherwise defined in this Summary have the meanings ascribed to
them elsewhere in this Proxy Statement/Prospectus or in the Reorganization
Agreement.
THE PARTIES TO THE REORGANIZATION
SYBRON
Sybron, through its subsidiaries, is a leading manufacturer of
value-added products for the laboratory and professional dental and orthodontic
markets in the United States and abroad. Its laboratory business provides
plastic labware, microscope slides, disposable diagnostic products,
consumables, temperature control apparatus and water purification systems to
industrial, academic, clinical, governmental and biotechnology laboratories.
Its dental and orthodontic businesses provide a diversified line of consumable
products to dentists and orthodontic appliances and related products to
orthodontists. Sybron 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. Sybron's consolidated 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, Sybron's sales
outside the United States represented approximately 32% of net sales. Sybron's
principal executive offices are located at 411 East Wisconsin Avenue,
Milwaukee, Wisconsin 53202; its telephone number is (414) 274-6600. See
"Business of Sybron."
ACQUISITION
Acquisition, a wholly-owned subsidiary of Sybron, is a Delaware
corporation which was incorporated by Sybron for the purpose of consummating
the Merger. It will have no operations except as contemplated by the
Reorganization Agreement. At the Effective Time of Merger, Acquisition will be
merged with and into LRS, which will be the surviving corporation in the
Merger. Following the Effective Time of Merger, Acquisition will cease to
exist. Acquisition's principal executive offices are the same as Sybron's,
located at 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202; telephone
number (414) 274-6600. See "Business of Sybron--Acquisition."
LRS
LRS, through its wholly owned subsidiaries, designs, manufactures,
markets and distributes orthodontic appliances and products. LRS is a holding
company whose principal subsidiary is "A" Company Orthodontics, a Delaware
corporation (" "A" Company"), which is a developer, manufacturer and provider
of orthodontic products. LRS has five other direct or indirect wholly owned
subsidiaries, which are referred to herein collectively with LRS and "A"
Company as the "LRS Companies." LRS' principal executive offices are located
at 9900 Old Grove Road, San Diego, California 92131-1683; its telephone number
is (619) 635-9300. See "Business, Management and Securityholders of LRS."
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LIBERTY
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 Kluger and
Peter Bennett, who serve as directors of LRS, are general partners of Liberty
Investment Partners 5, limited partners of Liberty Partners, L.P., and
stockholders of Liberty Capital Partners, Inc. Liberty (also referred to
herein as the "LRS Warrantholder") is a party to the Reorganization Agreement
because, in addition to holding 1,868.03 shares of LRS Common Stock, it holds a
warrant to acquire 2,000 shares of LRS Common Stock (the "LRS Warrant") which
will be exchanged for shares of Sybron Common Stock pursuant to the
Reorganization Agreement. See "The Merger--Conversion and Exchange of
Outstanding LRS Securities."
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THE SPECIAL MEETING
PLACE, TIME AND DATE; PURPOSE
The Special Meeting of holders of LRS Common Stock and LRS Preferred
Stock (as defined below) (collectively, "LRS Stockholders") will be held at the
principal offices of LRS Acquisition Corp., 9900 Old Grove Road, San Diego,
California, on Thursday, April 9, 1998 at 9:00 a.m., local time. The purpose
of the Special Meeting is to consider and vote upon the approval and adoption
of the Reorganization Agreement (attached hereto as Appendix A) providing for
the Merger. See "The Special Meeting--Place, Time and Date" and "--Purpose."
RECORD DATE; SHARES ENTITLED TO VOTE
The LRS Board has fixed the close of business on March 9, 1998 as the
record date for determination of the stockholders entitled to notice of and to
vote at the Special Meeting (the "Record Date"). Only holders of record of
shares of Common Stock, par value $.01 per share, of LRS (the "LRS Common
Stock"), Series A Preferred Stock, par value $1.00 per share, of LRS (the "LRS
Series A Preferred Stock") and Series B Preferred Stock, par value $1.00 per
share, of LRS (the "LRS Series B Preferred Stock" and, together with the LRS
Series A Preferred Stock, the "LRS Preferred Stock"), on the Record Date will
be entitled to notice and to vote at the Special Meeting. Each share of LRS
Common Stock and each share of LRS Preferred Stock is entitled to one vote on
the Reorganization Agreement. Except as otherwise provided in the Amended and
Restated Certificate of Incorporation of LRS (the"LRS Certificate"), the
Amended and Restated Stock and Warrant Purchase Agreement dated as of June 13,
1994, by and among LRS and the Investors named therein (the "LRS Stock and
Warrant Purchase Agreement") and as otherwise required by law, the LRS
Preferred Stock has no voting rights. The holders of LRS Common Stock have
such voting rights as are provided in the LRS Certificate, the Amended and
Restated Stockholders Agreement of LRS dated as of June 13, 1994 (the "LRS
Stockholders Agreement") and as otherwise required by law. Pursuant to the LRS
Certificate, holders of a majority of the shares of LRS Preferred Stock may
require LRS to redeem all or any portion of the LRS Preferred Stock upon the
consummation of the Merger. Holders of more than a majority of the LRS
Preferred Stock have indicated that they do not intend to require LRS to redeem
their shares of LRS Preferred Stock in connection with the Merger, and, if no
such election is made, and the Merger is approved, all of the LRS Preferred
will be exchanged for shares of Sybron Common Stock pursuant to the
Reorganization Agreement. It is a condition to Sybron's obligation to
consummate the Merger that such right of redemption not be asserted. All
holders of LRS Preferred Stock are parties to the LRS Stock and Warrant
Purchase Agreement. The LRS Stock and Warrant Purchase Agreement provides that
LRS may not merge with or into any other person without the prior written
consent of the holders of 75% of the shares of LRS Preferred Stock. A vote to
approve the Reorganization Agreement by the holders of LRS Preferred Stock will
constitute such consent. At the Record Date, there were outstanding 7,755
shares of LRS Common Stock, 4,110.68 shares of LRS Series A Preferred Stock and
5,192.65 shares of LRS Series B Preferred Stock. See "The Special
Meeting--Record Date; Shares Entitled to Vote."
VOTE REQUIRED FOR APPROVAL
The following votes are required for the approval of the
Reorganization Agreement by the LRS Stockholders at the Special Meeting: (i)
the affirmative vote of holders of a majority of the outstanding shares of LRS
Common Stock is required pursuant to the Delaware General Corporation Law ( the
"DGCL") and the LRS Certificate, (ii) the affirmative vote of 75% of the shares
of LRS Common Stock held by parties to the LRS Stockholders Agreement is
required pursuant to the LRS Stockholders Agreement, and (iii) holders of 75%
of the outstanding shares of LRS Preferred Stock must provide their consent
pursuant to the LRS Stock and Warrant Purchase Agreement. At the Record Date,
the directors and executive officers of LRS and their affiliates beneficially
owned approximately 93.0% of the outstanding shares of LRS Common Stock, 100%
of the LRS Series A Preferred Stock and 94.3% of the LRS Series B Preferred
Stock entitled to vote at the Special Meeting. Liberty held 1,868.03 shares of
LRS Common Stock, of which 1,429.04 shares were beneficially owned by the State
Board of Administration of Florida, LRS' principal lender, which also owns all
of the outstanding LRS Series A Preferred Stock. Liberty, the State Board of
Administration of Florida, and all of the directors and executive officers of
LRS have indicated their intention to vote their shares for approval of the
Reorganization Agreement. Pursuant to the terms of the LRS Stockholders
Agreement, if holders of a majority of
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the shares of LRS Common Stock which are subject thereto vote to approve and
adopt the Merger, all other holders of LRS Common Stock who are party to the
LRS Stockholders Agreement must consent to and raise no objections to the
Merger. Holders of approximately 91.2% of the outstanding shares of LRS Common
Stock are subject to the provisions of the LRS Stockholders Agreement and
holders of a majority of the shares of LRS Common Stock which are subject to
the LRS Stockholders Agreement have indicted that they intend to vote to
approve and adopt the Merger. No shares of LRS Common Stock or LRS Preferred
Stock were beneficially owned at the Record Date by Sybron directors, executive
officers and their affiliates. See "The Special Meeting--Vote Required for
Approval."
DISSENTERS' RIGHTS
The DGCL, under which LRS is incorporated, gives LRS Stockholders
appraisal rights with respect to the Reorganization Agreement. Appraisal
rights are available to holders of record of LRS Common Stock and LRS Preferred
Stock who object to the Merger. If you object to the Merger and desire to be
paid in cash the fair value of your shares, you must deliver to LRS, before the
taking of the vote on the Merger, a written demand for appraisal of your
shares, you must not vote in favor of the Merger, and you must otherwise comply
with the procedures set forth in Section 262 of the DGCL, a copy of which is
attached to the Proxy Statement/Prospectus as Appendix B. It is a condition to
Sybron's obligation to consummate the Merger that no more than two percent of
the then outstanding shares of LRS Common Stock and no more than two percent of
the then outstanding shares of LRS Preferred Stock shall be shares as to which
appraisal rights are exercised ("Dissenting Shares"). Pursuant to the terms of
the LRS Stockholders Agreement, holders of shares of LRS Common Stock subject
thereto must waive any dissenters, appraisal or similar rights with respect to
the Merger if the Merger is approved by holders of a majority of the shares of
LRS Common Stock covered thereby. Holders of approximately 91.2% of the
outstanding shares of LRS Common Stock are parties to the LRS Stockholders
Agreement. See "The Special Meeting--Dissenters' Rights" and "Rights of
Dissenting Stockholders."
THE MERGER
GENERAL
At the Effective Time of Merger, Acquisition will merge with and into
LRS. At such time, each issued and outstanding share of LRS Common Stock and
LRS Preferred Stock (except Dissenting Shares, if any) will be converted into
that number of shares of Sybron Common Stock as is equal to the applicable
exchange ratio determined pursuant to the Reorganization Agreement. The LRS
Warrant, the Nonvested Restricted Shares and unvested stock options to acquire
LRS Common Stock ("LRS Options") (other than LRS Options held by persons who
have not consented to such exchange) will be exchanged, based on their
estimated fair value, for shares of Sybron Common Stock as provided in the
Reorganization Agreement. The transaction value used as the starting point in
determining the conversion and exchange ratios for outstanding LRS securities
is the "Gross Merger Price" of $120,000,000, less the amount of certain
payments and subject to certain adjustments. In each case, the conversion or
exchange ratio will be computed by dividing the applicable measure of value
determined pursuant to the Reorganization Agreement for each type of LRS
security by the average closing sale price per share of Sybron Common Stock on
the New York Stock Exchange for the 30 consecutive trading days ending with the
fifth trading day prior to the Closing Date for the Merger (the "Average Sybron
Stock Price"). No fractional shares of Sybron Common Stock will be issued in
the Merger. In lieu thereof, each holder of shares of LRS securities who would
otherwise have been entitled to receive a fraction of a share of Sybron Common
Stock (after all fractional shares to which such holder is entitled have been
combined to yield the largest possible number of whole shares of Sybron Common
Stock) will be paid the cash value of such fraction based on the Average Sybron
Stock Price. PLEASE NOTE THAT SECURITYHOLDERS OF LRS SHOULD NOT SUBMIT THEIR
LRS CERTIFICATES FOR EXCHANGE UNTIL THEY RECEIVE INSTRUCTIONS TO DO SO.
If the Merger had been consummated as of the date of the
Reorganization Agreement, when the Average Sybron Stock Price would have been
$22.96145 (as adjusted for the Sybron 1998 Stock Split), each outstanding share
of Series A Preferred Stock would have been converted into 43.7739571 shares of
Sybron Common Stock, each outstanding share of Series B Preferred Stock would
have been converted into 58.20405 shares of Sybron Common Stock, each
outstanding share of unrestricted LRS Common Stock would have been converted
into 325.0008 shares of Sybron Common Stock, and each outstanding Nonvested
Restricted Share of LRS Common Stock would have been
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converted into 234.43598 shares of Sybron Common Stock. The LRS Warrant would
have been exchanged for 641,291 shares of Sybron Common Stock and each LRS
Option, assuming all of the outstanding LRS Options were exchanged, would have
been exchanged for 226.16124 shares of Sybron Common Stock for each share of
LRS Common Stock issuable upon exercise of such option (assuming 100% vesting).
The actual exchange ratios will be determined by the Average Sybron
Stock Price and the other elements of the formulas determining the exchange
ratios at the time the Merger is consummated. If the Average Sybron Stock
Price (as adjusted for the Sybron 1998 Stock Split) is greater than $27.625,
LRS, and if the Average Sybron Stock Price (as so adjusted) is less than
$18.4375, LRS or Sybron, shall have the right but not the obligation to
terminate the Reorganization Agreement prior to Closing. If the Merger had
been consummated as of March 9, 1998, the Average Sybron Stock Price would have
been $26.9540.
If the Merger had been consummated as of the date of the
Reorganization Agreement, when the Average Sybron Stock Price would have been
$22.96145, approximately 3,747,351 shares of Sybron Common Stock would have
been issuable pursuant to the Reorganization Agreement. If the Average Sybron
Stock Price had been $27.625 as of the date of the Reorganization Agreement,
the number of shares of Sybron Common Stock issuable pursuant to the
Reorganization Agreement would have been approximately 3,114,737; if the
Average Sybron Stock Price at such time had been $18.4375, approximately
4,666,828 shares of Sybron Common Stock would have been issuable pursuant to
the Reorganization Agreement.
As a result of the Merger, the independent corporate existence of
Acquisition will cease and LRS, as the surviving corporation in the Merger,
will become a wholly owned subsidiary of Sybron. See "The Merger--General" and
"--Conversion and Exchange of Outstanding LRS Securities."
RECOMMENDATION OF THE LRS BOARD
THE LRS BOARD BY UNANIMOUS WRITTEN CONSENT HAS APPROVED THE MERGER AS
ADVISABLE, FAIR AND IN THE BEST INTERESTS OF LRS AND THE LRS SECURITYHOLDERS
AND UNANIMOUSLY RECOMMENDS A VOTE FOR THE APPROVAL AND ADOPTION OF THE
REORGANIZATION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY.
For a discussion of the circumstances surrounding the Merger and the
factors considered by the LRS Board in making its recommendation, see "The
Merger--Background of the Merger" and "--Reasons for the Merger; Recommendation
of the LRS Board." Approval of the Reorganization Agreement by the
stockholders of LRS is a condition to consummation of the Merger. See "The
Merger--Conditions to Consummation of the Merger."
INTEREST OF CERTAIN PERSONS IN THE MERGER
In connection with the Merger, Sybron will repay all outstanding
indebtedness owed by LRS or its direct or indirect subsidiaries to the State
Board of Administration of Florida, after LRS has used available cash to reduce
such indebtedness. As of the date of the Reorganization Agreement, the amount
of such outstanding indebtedness, including accrued interest, was approximately
$32,424,000. As provided in the Reorganization Agreement, Sybron will also
make one-time bonus payments to individuals for past performance and for
assisting in completing the transaction in the aggregate amount of $1,040,000
to six executive officers of the LRS Companies, and in the aggregate amount of
approximately $773,000 to 33 non-executive employees of the LRS Companies; 59%
of the bonus recipients are not holders of LRS securities. In addition, Sybron
will pay approximately $635,000 to Johnston Associates in satisfaction of
amounts owed by LRS in connection with the termination of a consulting
agreement pursuant to which Johnston Associates has provided certain consulting
services to LRS. Robert Stockman, a director of LRS, is a Vice President of
Johnston Associates. In connection with the Merger, Sybron will make certain
termination payments to Gordon Nye, President and CEO of LRS. These payments
are estimated to be approximately $1,930,000 and consist of (i) $1,600,000
under the Employment Agreement dated as of March 8, 1996, as replaced by a
similar Employment Agreement dated as of June 24, 1997, among LRS, "A" Company
and Mr. Nye, and (ii) $330,000 under the Deferred Compensation Agreement dated
as of June 24, 1997 between "A" Company and Mr. Nye. In addition, Sybron will
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forgive certain indebtedness owed by Mr. Nye to the LRS Companies totaling
$105,000 for relocation expenses incurred in 1996. Mr. Nye will repay his
$30,000 promissory note given to LRS as consideration for 300 shares of LRS
Common Stock sold to Mr. Nye pursuant to the March 8, 1996 Employment
Agreement.
The Reorganization Agreement provides that for a period of at least
three years after the Merger becomes effective (the "Effective Time of Merger")
Sybron will, and will cause LRS to, maintain in effect certain provisions
indemnifying present or former directors and officers of LRS who served as such
at or prior to the Effective Time of Merger.
See "The Merger--Interests of Certain Persons in the Merger."
MANAGEMENT AND OPERATIONS OF LRS AFTER THE MERGER
After the Effective Time of Merger, LRS, as the surviving corporation
in the Merger, will become a wholly owned subsidiary of Sybron. Immediately
after the Merger, "A" Company and the other LRS Companies will continue to be
direct or indirect subsidiaries of LRS. The directors and officers of
Acquisition immediately prior to the Effective Time of Merger will be the
directors and officers of LRS after the Effective Time of Merger. Sybron's
dental company subsidiary, Sybron Dental Specialties, Inc. ("SDS"), will manage
the operations of "A" Company and the other LRS Companies after the Effective
Time of Merger. Because "A" Company fits well with Ormco Corporation, SDS's
orthodontic subsidiary, SDS plans to take advantage of the complementary
products of Ormco and "A" Company to provide orthodontists with a broader range
of products, use the strength of each company to expand research and
development, and gain efficiencies by consolidating certain operating
functions. See "The Merger--Management and Operations of LRS After the
Merger."
CONDITIONS TO CONSUMMATION OF THE MERGER
The respective obligations of Sybron, Acquisition and LRS to
consummate the Merger are subject to the fulfillment or waiver of certain
conditions, including, among others: approval of the Reorganization Agreement
by the requisite vote of LRS Stockholders; the receipt of consents of the
holders of LRS Options ("LRS Optionholders") and the consents of holders of
restricted shares of LRS Common Stock that have not vested as of the Closing
Date ("Nonvested Restricted Shares") as required by the Reorganization
Agreement; the securing of all requisite regulatory approvals and consents of
third parties, and compliance with all necessary requirements of Section 7A of
the Clayton Act, enacted by the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the "HSR Act"); the absence of any condition in such approvals or
consents applicable to the LRS Companies, Sybron or Acquisition which is, in
the reasonable judgment of Sybron, materially adverse in any manner to the LRS
Companies, Sybron or Acquisition; receipt of an opinion of counsel to the
effect that the Merger will be treated for federal income tax purposes as a
tax-free reorganization; and assurance from Sybron's independent accountants
that the Merger will qualify for pooling-of-interests accounting treatment.
See "The Merger--Conditions to Consummation of the Merger."
EXCLUSIVE DEALING
As long as the Reorganization Agreement has not been terminated in
accordance with its terms, LRS has agreed not to directly or indirectly
solicit, entertain or encourage inquiries or proposals or enter into an
agreement or negotiate with any other person with respect to the sale of all or
any portion of the LRS Common Stock, the LRS Preferred Stock or the business of
the LRS Companies. See "The Merger--Exclusive Dealing."
REGULATORY REQUIREMENTS
Consummation of the Merger is subject to expiration or termination of
the waiting period under the HSR Act. Sybron and LRS filed appropriate
notifications under the HSR Act on January 26, 1998. The waiting period under
the HSR Act expires or terminates 30 days after such a filing unless early
termination is received or a request for additional information is made by
either the Antitrust Division of the United States Department of Justice (the
"Antitrust Division") or the Federal Trade Commission (the "FTC"). The waiting
period was terminated by early termination on February
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4, 1998, so this condition to the Merger has been satisfied. See "The
Merger--Conditions to Consummation of the Merger" and "--Regulatory
Requirements."
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The Merger is conditioned upon the receipt by LRS of an opinion of
Quarles & Brady, Sybron's legal counsel, dated as of the Closing Date, to the
effect that, for federal income tax purposes: (i) the Merger will be treated
as a reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended (the "Code"); (ii) Sybron, Acquisition and LRS
will each be a party to that reorganization within the meaning of Section
368(b) of the Code; (iii) no gain or loss will be recognized by Sybron,
Acquisition or LRS as a result of the Merger; (iv) no gain or loss will be
recognized by LRS Stockholders and the LRS Warrantholder with respect to the
exchange of their shares of LRS Common Stock (excluding Nonvested Restricted
Shares), shares of LRS Preferred Stock or the LRS Warrant for Sybron Common
Stock in the Merger (other than with respect to any cash paid in lieu of
fractional shares of Sybron Common Stock); (v) the tax basis of the shares of
Sybron Common Stock into which shares of LRS Common Stock (excluding Nonvested
Restricted Shares), shares of LRS Preferred Stock or the LRS Warrant are
converted will be the same as the basis of the shares of LRS Common Stock,
shares of LRS Preferred Stock or the LRS Warrant converted into such Sybron
Common Stock, reduced by any amount allocable to the fractional share interests
for which cash is received; (vi) the holding period for shares of Sybron Common
Stock into which shares of LRS Common Stock (excluding Nonvested Restricted
Shares) or shares of LRS Preferred Stock are converted will include the period
that such shares of LRS Common Stock or shares of LRS Preferred Stock were held
by the holder, provided that such shares were held as capital assets of the
holder at the Effective Time of Merger; and (vii) cash payments received by an
LRS Stockholder or the LRS Warrantholder in lieu of a fractional share of
Sybron Common Stock will be treated as received in redemption of such
fractional share, subject to the provisions of Section 302 of the Code, as if
such fractional share of Sybron Common Stock had been issued in the Merger and
then redeemed by Sybron. There can be no assurance that contrary positions may
not be asserted by the Internal Revenue Service. The opinion of Quarles &
Brady will express no opinion with respect to the federal income tax treatment
arising out of the Merger and/or the transactions contemplated by the
Reorganization Agreement of the LRS Optionholders with respect to the LRS
Options or the holders of Nonvested Restricted Shares with respect to the
Nonvested Restricted Shares. No opinion will be expressed as to the holding
period of the shares of Sybron Common Stock for which the LRS Warrant is
exchanged; however, the parties believe that such holding period will include
the period during which the LRS Warrant was held. No opinion will be expressed
as to the tax treatment of Dissenting Shares, if any. All LRS securityholders
are urged to consult their own tax advisors as to the specific tax consequences
to them of the Merger and the other transactions contemplated in connection
therewith, including the applicability and effect of federal, state, local,
foreign and other tax laws. See "The Merger--Certain Federal Income Tax
Consequences."
ACCOUNTING TREATMENT
The Merger has been structured to qualify as a pooling of interests
for accounting and financial reporting purposes. The obligation of Sybron to
consummate the Merger is subject to the receipt of assurance from KPMG Peat
Marwick LLP, its independent accountants, that the Merger will qualify for
pooling-of-interests accounting treatment. See "The Merger--Conditions to
Consummation of the Merger" and "--Accounting Treatment."
COMPARISON OF SHAREHOLDER RIGHTS
Sybron is incorporated in the State of Wisconsin and is governed by
Wisconsin law. LRS is incorporated in the State of Delaware and is governed by
Delaware law. For a discussion of certain differences in the rights of
shareholders under Wisconsin law and stockholders under Delaware law, and under
the respective articles or certificate of incorporation and bylaws of Sybron
and LRS, see "Comparison of Shareholder Rights."
13
17
SELECTED FINANCIAL DATA
The summary below sets forth selected historical financial data for
Sybron and LRS. The Sybron financial data should be read in conjunction with
the consolidated financial statements and notes thereto contained in the Sybron
documents incorporated by reference herein. The LRS financial data should be
read in conjunction with the financial statements and notes thereto appearing
elsewhere in this Proxy Statement/Prospectus. See "Incorporation of Certain
Documents by Reference" and "Index to LRS Financial Statements."
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18
SYBRON CONSOLIDATED FINANCIAL DATA
The following table sets forth selected historical consolidated
financial data for Sybron for each of the five years in the period ended
September 30, 1997 and the unaudited consolidated financial data for the three
months ended December 31, 1996 and 1997. The selected data as of and for the
years ended September 30, 1993, 1994, 1995, 1996 and 1997 have been derived
from, and should be read in conjunction with, the audited consolidated
financial statements and other financial information contained in Sybron's
Annual Report on Form 10-K for the year ended September 30, 1997, including the
notes thereto, incorporated by reference herein. The selected historical
financial statement data as of and for the three month periods ended December
31, 1996 and 1997 have been derived from unaudited consolidated financial
statements which, in the opinion of Sybron, reflect all adjustments which are
of a normal recurring nature, and are necessary for the fair presentation of
the results for the unaudited periods. Such data should be read in conjunction
with the other financial information contained in Sybron's Quarterly Report on
Form 10-Q for the quarter ended December 31, 1997, including the notes thereto,
incorporated by reference herein.
THREE MONTHS ENDED
YEARS ENDED SEPTEMBER 30, DECEMBER 31,
-------------------------- ---------------------
(unaudited)
1993 1994 1995 1996 1997 1996 1997
---- ---- ---- ---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
STATEMENT OF INCOME DATA(A):
Net sales . . . . . . . . . $395,404 $439,704 $519,200 $674,457 $795,087 $173,658 $210,127
Income before extraordinary
items and cumulative effect
of accounting change . . . 25,793 43,015 51,800 57,584 81,876 15,678 19,335
Extraordinary items . . . . (8,531)(b) -- (2,885)(b) -- (673)(b) -- --
Cumulative effect of
accounting change . . . . . -- (420)(c) -- -- -- -- --
Net income . . . . . . . . 17,262 42,595 48,915 57,584 81,203 15,678 19,335
Basic earnings per common
share(e):
Basic earnings per common
share before extraordinary
items and cumulative effect .62(d) .86 .17 .20
of accounting change . . . .30(d) .47 .56
Extraordinary items . . . . (.10) -- (.03) -- (.01) -- --
Cumulative effect of
accounting change . . . . . -- (.01) -- -- -- -- --
Basic earnings per common .46 .53 .62(d) .85 .17 .20
share . . . . . . . . . . . .20(d)
Diluted earnings per common
share(e):
Diluted earnings per common
share before extraordinary
items and cumulative effect
of accounting change . . . .29(d) .46 .55 .60(d) .83 .16 .19
Extraordinary items . . . . (.10) -- (.03) -- (.01) -- --
Cumulative effect of
accounting change . . . . . -- -- -- -- -- -- --
Diluted earnings per common .60(d) .16 .19
share . . . . . . . . . . . .19(d) .46 .52 .82
BALANCE SHEET DATA (AT
PERIOD END):
Total assets . . . . . .
Long-term debt . . . . . $481,291 $557,676 $852,083 $974,613 $1,221,511 $990,047 $1,280,852
Shareholders' equity . . 249,309 223,565 406,547 481,037 645,733 478,673 676,637
126,353 176,775 227,250 283,079 366,956 303,678 391,447
15
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(a) Includes results of acquired companies since their effective dates of
acquisition with the exception of the merger of National Scientific
Company with a wholly owned subsidiary of Sybron formed for that
purpose, whose results are included from October 1, 1996.
(b) Amount resulted from the refinancing of debt.
(c) Amount resulted from the adoption of Statement of Financial Accounting
Standards No. 109, "Accounting for Income Taxes."
(d) Includes a restructuring charge of $.03 and $.07 per share in fiscal
1993 and 1996, respectively.
(e) Earnings per common share have been adjusted to reflect a two-for-one
stock split in the form of a 100 percent share dividend distributed
on February 20, 1998 to shareholders of record at the close of
business on February 12, 1998.
16
20
LRS CONSOLIDATED FINANCIAL DATA
The following table sets forth selected historical consolidated
financial data for LRS for the period from June 16, 1994 to December 31, 1994,
and for each of the three years in the period ended December 31, 1997. Such
data should be read in conjunction with the audited consolidated financial
statements, including the notes thereto, contained in this Proxy
Statement/Prospectus.
PERIOD FROM
JUNE 16, 1994 TO
DECEMBER 31, YEARS ENDED DECEMBER 31,
------------ ------------------------
1994(A) 1995 1996 1997
---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
STATEMENT OF INCOME DATA:
Net sales. . . . . . . . . . . . . . . . . . . . . $20,527 $41,652 $43,493 $45,256
Net income (loss). . . . . . . . . . . . . . . . . (6,793) 887 1,239 2,558
Dividends to preferred stockholders. . . . . . . . (405) (783) (818) (877)
Net income (loss) attributable to common stock . . (7,198) 104 421 1,681
Basic earnings (loss) per common share . . . . . (999.72) 14.71 58.07 229.39
Diluted earnings (loss) per common share . . . . . (999.72) 14.71 58.07 169.46
BALANCE SHEET DATA (AT PERIOD END):
Total assets . . . . . . . . . . . . . . . . . . $52,547 $49,296 $47,480 $48,491
Long-term debt . . . . . . . . . . . . . . . . . 41,977 37,062 33,350 29,366
Redeemable preferred stock . . . . . . . . . . . 9,455 9,985 10,469 11,015
Stockholders' deficit. . . . . . . . . . . . . . (5,203) (4,705) (4,313) (2,605)
- --------------------
(a) Includes the period from June 16, 1994, to December 31, 1994. Prior
to June 16, 1994, "A" Company operated as a division of Johnson &
Johnson.
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21
SYBRON UNAUDITED PRO FORMA COMBINED FINANCIAL DATA
The following table sets forth selected unaudited pro forma combined
financial data for Sybron for each of the three years in the period ended
September 30, 1997, and for the three month periods ended December 31, 1996 and
1997. This data is presented to reflect the estimated impact on the historical
consolidated financial statements of Sybron of the Merger, which will be
accounted for as a pooling of interests, and the issuance of approximately
3,747,351 shares of Sybron Common Stock pursuant to the Reorganization
Agreement (the number of shares that would have been issuable if the Merger had
been consummated on January 23, 1998, the date of the Reorganization
Agreement). The financial data assume that the Merger had been consummated at
the beginning of the earliest period presented, October 1, 1994. The unaudited
pro forma combined financial data do not reflect any cost savings and other
synergies nor merger related expenses anticipated by Sybron management as a
result of the Merger and are not necessarily indicative of the results of
operations or the financial position which would have occurred had the Merger
been consummated at the beginning of the earliest period presented, nor are
they necessarily indicative of Sybron's future results of operations or
financial position. The unaudited pro forma combined data should be read in
conjunction with the historical consolidated financial statements of Sybron and
LRS, including the notes thereto, incorporated by reference or appearing
elsewhere in this Joint Proxy Statement/Prospectus.
THREE MONTHS ENDED
YEARS ENDED SEPTEMBER 30,(E) DECEMBER 31,
-------------------------------- --------------------
1995 1996 1997 1996 1997
---- ---- ---- ---- ----
STATEMENT OF INCOME DATA:(A) (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
Net sales . . . . . . . . . . . . . . . . . . . . . . $560,852 $717,950 $840,343 $186,871 $224,629
Income before extraordinary items . . . . . . . . . . 52,687 58,823 84,434 16,795 20,854
Extraordinary items(b) . . . . . . . . . . . . . . . . (2,885) -- (673) -- --
Net income . . . . . . . . . . . . . . . . . . . . . . 49,802 58,823 83,761 16,975 20,854
Dividends to Preferred Stockholders(c) . . . . . . . . (783) (818) (877) (209) (222)
Net income attributable to common stock(c) . . . . . 49,019 58,005 82,884 16,766 20,632
Basic earnings per common share(c):
Basic earnings per common share before
extraordinary items . . . . . . . . . . . . . . . . . . 0.55 0.61 0.85 .17 .21
Extraordinary items . . . . . . . . . . . . . . . . . . (0.03) -- (0.01) -- --
Basic earnings per common share(d) . . . . . . . . . .
0.52 0.61 0.84 .17 .21
Diluted earnings per common share(c):
Diluted earnings per common share
before extraordinary items . . . . . . . . . . . . . . 0.54 0.59 0.82 .17 .20
Extraordinary items . . . . . . . . . . . . . . . . . . (0.03) -- (0.01) -- --
Diluted earnings per common share(d) . . . . . . . . . 0.51 0.59 0.81 .17 .20
BALANCE SHEET DATA (AT PERIOD END):
Total assets . . . . . . . . . . . . . . . . . . . .
$901,379 $1,022,093 $1,270,002 $1,037,527 $1,329,343
Long-term debt . . . . . . . . . . . . . . . . . . . 443,609 514,387 675,099 512,023 706,003
Shareholders' equity . . . . . . . . . . . . . . . . 222,545 278,766 364,351 299,365 388,842
- --------------------
18
22
(a) Includes results of acquired companies since their effective dates of
acquisition with the exception of the merger of National Scientific
Company with a wholly owned subsidiary of Sybron formed for that
purpose, whose results are included from October 1, 1996, and LRS
whose results are included from October 1, 1994.
(b) Amounts resulted from the refinancing of debt.
(c) Dividends to preferred shareholders are shown for the purpose of
disclosing amounts which will be presented in the Sybron historical
financial statements after the Merger. Since the terms of the
Reorganization Agreement dictate that LRS Preferred Stock will be
exchanged for Sybron Common Stock, for purposes of earnings per share
calculations, dividends on LRS Preferred Stock were eliminated and the
exchanged number of shares of Sybron Common Stock were included in the
weighted average shares outstanding calculations.
(d) Includes a restructuring charge of $.07 per share in fiscal 1996.
(e) Amounts included for LRS are for fiscal years ended December 31, 1995,
1996 and 1997.
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23
COMPARATIVE PER SHARE DATA
The following table sets forth per share data of Sybron on a
historical and pro forma combined basis and of LRS on a historical and
equivalent pro forma basis. This table should be read in conjunction with the
consolidated financial statements and notes thereto of Sybron contained in the
Sybron documents incorporated by reference herein, and with the consolidated
financial statements and notes thereto of LRS appearing elsewhere in this Proxy
Statement/Prospectus. See "Incorporation of Certain Documents by Reference"
and "Index to LRS Financial Statements." Pro forma combined and equivalent pro
forma per share data reflect the combined results of Sybron and LRS, after
giving effect to the Merger under the pooling-of-interests accounting method,
as if the Merger had occurred on the date of such data, in the case of book
value data, and on October 1, 1994, in the case of earnings data.
PRO FORMA SYBRON AND
EQUIVALENT PRO FORMA
HISTORICAL LRS(A)(B)
-------------------------------------- ---------------------------------------------
THREE THREE
MONTHS MONTHS
ENDED ENDED
YEARS ENDED SEPTEMBER 30, DECEMBER 31, YEARS ENDED SEPTEMBER 30, DECEMBER 31,
------------------------- ------------ ------------------------- ------------
1995 1996 1997 1996 1997 1995 1996 1997 1996 1997
---- ---- ---- ---- ---- ---- ---- ---- ---- ----
SYBRON
Basic earnings per
common share $ .53 $ .62 $ .85 .17 .20 $ .52 $ .61 $ .84 $ .17 $ .21
Diluted earnings
per common share .52 .60 .82 .16 .19 .51 .59 .81 .17 .20
Cash dividends declared
per common share -- -- -- -- -- -- -- -- -- --
Book value per common
share 2.44 3.02 3.81 3.23 4.06 2.30 2.86 3.64 3.06 3.88
YEARS ENDED DECEMBER 31,
------------------------
LRS 1995 1996 1997
---- ---- ----
Basic earnings per
common share $ 14.71 $58.07 $229.39 $171.25 $200.23 $ 276.51 $ 55.86 $67.65
Diluted earnings
per common share 14.71 58.07 169.46 169.20 195.28 266.69 54.05 65.12
Cash dividends
declared per common
share -- -- --
Book value per
common share(c) (635.81) (554.23) (335.91) 747.16 928.33 1,183.06 995.77 1,261.35
- --------------------
(a) The equivalent per share data for LRS presents the pro forma results
for Sybron using the exchange ratios that would have applied if the Merger had
been consummated on January 23, 1998, the date of the Reorganization Agreement,
when the Average Sybron Stock Price would have been $22.96145. Dividends on
LRS Preferred Stock have been eliminated for purposes of this presentation.
The actual exchange ratios will reflect the Average Sybron Stock Price for the
30 consecutive trading days ending with the fifth trading day prior to the
Closing Date. See "The Merger--Conversion and Exchange of Outstanding LRS
Securities."
(b) Pro forma data for the years ended September 30, 1995, 1996, and 1997
have been presented using the year ended September 30, 1995, 1996, and 1997
Sybron data combined with the December 31, 1995, 1996, and 1997 LRS data.
(c) The book value per share for LRS excludes redeemable preferred stock
from the numerator.
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24
MARKET PRICE DATA
Sybron Common Stock is listed for trading on the NYSE under the symbol
"SYB." There is no public market for LRS Common Stock or LRS Preferred Stock.
Sybron has not, since its inception paid any dividends on its Common Stock.
Certain restrictions on Sybron's ability to pay dividends are described in
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Liquidity and Capital Resources" in Item 7 and in Note 7 to
Sybron's consolidated financial statements contained in Item 8 of Sybron's
Annual Report on Form 10-K for the year ended September 30, 1997, incorporated
by reference herein. Subject to such limitations, any future dividends will be
at the discretion at the Sybron Board of Directors and will depend upon, among
other factors, Sybron's earnings, financial condition and other requirements.
Sybron has no current intention to pay cash dividends on its Common Stock.
As long as any LRS Preferred Stock remains outstanding, LRS may not,
without the prior written consent of the holders of at least 75% of the
outstanding shares of Preferred Stock, pay or declare any dividends on the LRS
Common Stock. Holders of LRS Preferred Stock are entitled to receive
preferential and cumulative quarterly dividends at a rate of 8% per annum
payable on the sum of the liquidation value of the Preferred Stock plus all
accumulated and unpaid dividends. Quarterly dividends on the Series A
Preferred Stock are payable in cash. Series A dividends paid out in the years
1995, 1996 and 1997 were $253,000, $334,000 and $331,000, respectively. There
were no dividends paid on Series B Preferred Stock during such periods.
The table below sets forth, for the fiscal quarters indicated, the
range of high and low sales prices of Sybron Common Stock as reported on the
NYSE Composite Transactions Tape. The sales prices have been adjusted to
reflect Sybron's two-for-one stock splits effected on December 15, 1995 and
February 20, 1998.
SYBRON
COMMON STOCK
---------------------
FISCAL YEARS ENDED SEPTEMBER 30 HIGH LOW
--------------------------------------------------------------
1995
First Quarter $ 9.000 $ 7.782
Second Quarter 9.090 8.063
Third Quarter 10.188 8.813
Fourth Quarter 10.719 9.844
--------------------------------------------------------------
1996
First Quarter $12.063 $ 9.219
Second Quarter 12.500 10.938
Third Quarter 13.750 11.563
Fourth Quarter 14.875 12.188
--------------------------------------------------------------
1997
First Quarter $16.875 $14.375
Second Quarter 17.375 13.375
Third Quarter 20.375 13.563
Fourth Quarter 21.875 19.625
--------------------------------------------------------------
1998
First Quarter $24.250 $19.500
Second Quarter
(through March 6, 1998) 28.688 21.844
==============================================================
On January 22, 1998, the trading day immediately preceding the day the
Reorganization Agreement was entered into, the closing price per share of
Sybron Common Stock, as reported on the NYSE Composite Transactions Tape, was
$23.688.
On March 6, 1998, the most recent date for which it was practicable to
obtain market price data prior to the printing of this Proxy
Statement/Prospectus, the closing price per share of Sybron Common Stock, as
reported on the NYSE Composite Transactions Tape, was $27.50. HOLDERS OF LRS
SECURITIES ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR SHARES OF SYBRON
COMMON STOCK.
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25
RECENT DEVELOPMENTS
SYBRON
Sybron 1998 Stock Split. On January 30, 1998, the Sybron Board
approved a two-for-one stock split in the form of a 100% share dividend,
resulting in the issuance on February 20, 1998 of one additional share of
Sybron Common Stock for each share held by shareholders of record on February
12, 1998 (the "Sybron 1998 Stock Split"). Unless otherwise indicated, all
financial and other data in this Proxy Statement/Prospectus (but not all data
incorporated herein by reference) has been restated to reflect the effect of
the Sybron 1998 Stock Split.
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26
THE SPECIAL MEETING
PLACE, TIME AND DATE
The Special Meeting of LRS Stockholders will be held at the principal
offices of LRS Acquisition Corp., 9900 Old Grove Road, San Diego, California,
on Thursday, April 9, 1998, at 9:00 a.m., local time. This Proxy
Statement/Prospectus is being sent to holders of LRS Common Stock and LRS
Preferred Stock and accompanies a form of proxy which is being solicited by the
LRS Board for use at the Special Meeting and any adjournment or postponement
thereof. The Proxy Statement/Prospectus is also being provided to the LRS
Optionholders and the holders of Nonvested Restricted Shares in connection with
the solicitation of consents to the exchange of their LRS securities pursuant
to the Reorganization Agreement.
PURPOSE
The purpose of the Special Meeting is to consider and vote upon the
approval and adoption of the Reorganization Agreement providing for, among
other things, the Merger and the conversion of shares of LRS Common Stock and
LRS Preferred Stock into shares of Sybron Common Stock, as well as to transact
such other business, if any, as may properly come before the Special Meeting.
RECORD DATE; SHARES ENTITLED TO VOTE
The LRS Board has fixed the close of business on March 9, 1998 as the
Record Date for determination of the stockholders entitled to notice of and to
vote at the Special Meeting. Only holders of record of the shares of LRS
Common Stock and LRS Preferred Stock on the Record Date will be entitled to
notice and to vote at the Special Meeting. Each share of LRS Common Stock and
each share of LRS Preferred Stock is entitled to one vote on the Reorganization
Agreement. Except as otherwise provided in the LRS Certificate of
Incorporation, the LRS Stock and Warrant Purchase Agreement and as otherwise
required by law, the LRS Preferred Stock has no voting rights. Pursuant to the
LRS Certificate, holders of a majority of the shares of LRS Preferred Stock may
require LRS to redeem all or any portion of the LRS Preferred Stock upon the
consummation of the Merger. Holders of more than a majority of the LRS
Preferred Stock have indicated that they do not intend to require LRS to redeem
their shares of LRS Preferred Stock in connection with the Merger, and, if no
such election is made, and the Merger is approved, all of the LRS Preferred
Stock will be exchanged for shares of Sybron Common Stock pursuant to the
Reorganization Agreement. It is a condition to Sybron's obligation to
consummate the Merger that such right of redemption not be asserted. All
holders of LRS Preferred Stock are parties to the LRS Stock and Warrant
Purchase Agreement. The LRS Stock and Warrant Purchase Agreement provides that
LRS may not merge with or into any other person without the prior written
consent of the holders of 75% of the shares of LRS Preferred Stock. A vote to
approve the Reorganization Agreement by the holders of LRS Preferred Stock will
constitute such consent. At the Record Date, there were outstanding 7,755
shares of LRS Common Stock, 4,110.68 shares of LRS Series A Preferred Stock and
5,192.65 shares of LRS Series B Preferred Stock.
VOTE REQUIRED FOR APPROVAL
A majority of the shares entitled to vote, represented in person or by
proxy, will constitute a quorum of LRS stockholders at the Special Meeting.
Abstentions will be considered present for purposes of determining whether a
quorum exists. The following votes are required for the approval of the
Reorganization Agreement by the LRS Stockholders at the Special Meeting: (i)
the affirmative vote of holders of a majority of the outstanding shares of LRS
Common Stock is required pursuant to the DGCL and the LRS Certificate, (ii) the
affirmative vote of 75% of the shares of LRS Common Stock held by parties to
the LRS Stockholders Agreement is required pursuant to the LRS Stockholders
Agreement, and (iii) holders of 75% of the outstanding shares of LRS Preferred
Stock must provide their
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27
consent pursuant to the LRS Stock and Warrant Purchase Agreement. Abstentions
will have the same effect as votes cast against approval of the Reorganization
Agreement.
At the Record Date, the directors and executive officers of LRS and
their affiliates beneficially owned approximately 93.0% of the outstanding
shares of LRS Common Stock, 100% of the LRS Series A Preferred Stock and 94.3%
of the LRS Series B Preferred Stock entitled to vote at the Special Meeting.
Liberty held 1,868.03 shares of LRS Common Stock, of which 1,429.04 shares
were beneficially owned by the State Board of Administration of Florida, LRS'
principal lender, which also owns all of the outstanding LRS Series A Preferred
Stock. Liberty, the State Board of Administration of Florida, and all of the
directors and executive officers of LRS have indicated their intention to vote
their shares for approval of the Reorganization Agreement. Pursuant to the
terms of the LRS Stockholders Agreement, if holders of a majority of the shares
of LRS Common Stock which are subject thereto vote to approve and adopt the
Merger, all other holders of LRS Common who are party to the LRS Stockholders
Agreement must consent to and raise no objections to the Merger. Holders of
approximately 91.2% of the outstanding shares of LRS Common Stock are subject
to the provisions of the LRS Stockholders Agreement and holders of a majority
of the shares of LRS Common which are subject to LRS Stockholders Agreement
have indicted that they intend to vote to approve and adopt the Merger. No
shares of LRS Common Stock or LRS Preferred Stock were beneficially owned at
the Record Date by Sybron directors, executive officers and their affiliates.
PROXIES
Holders of LRS Common Stock and LRS Preferred Stock may vote either in
person or by a properly executed proxy. Shares of LRS Common Stock and LRS
Preferred Stock represented by a properly executed proxy received prior to or
at the Special Meeting will, unless such proxy is revoked, be voted in
accordance with the instructions indicated on such proxy. If no instructions
are indicated on a properly executed proxy, the shares will be voted FOR the
proposal to approve and adopt the Reorganization Agreement. FAILURE TO RETURN
THE PROXY CARD OR TO VOTE IN PERSON AT THE SPECIAL MEETING WILL HAVE THE EFFECT
OF A VOTE AGAINST THE MERGER.
Any proxy given pursuant to this solicitation or otherwise may be
revoked by the person giving it at any time before it is voted by delivering to
the Corporate Secretary of LRS, on or before the taking of the vote at the
Special Meeting, a written notice of revocation bearing a later date than the
proxy or a later dated proxy related to the same shares of LRS Common Stock or
LRS Preferred Stock, or by attending the Special Meeting and voting in person.
Attendance at the Special Meeting will not in itself constitute revocation of a
proxy.
The expense of soliciting proxies will be borne by LRS. The expense
of printing this Proxy Statement/Prospectus and the expense of printing and
filing the Registration Statement will be paid by Sybron. Sybron paid the
filing fee relating to the filing required by the HSR Act. All other costs and
expenses incurred in connection with the Reorganization Agreement and the
transactions contemplated thereby shall be paid by the party incurring such
expenses. Proxies will be solicited principally by mail, but may also be
solicited by the directors, officers and other regular employees of LRS in
person or by telephone, facsimile or other means of communication. Such
directors, officers and employees will receive no compensation therefor in
addition to their regular compensation, but may be reimbursed for out-of-pocket
expenses in connection with such solicitation.
If any other matters are properly presented at the Special Meeting for
consideration, including, among other things, consideration of a motion to
adjourn the Special Meeting to another time and/or place (including, without
limitation, for the purpose of soliciting additional proxies), the persons
named in the proxy and acting thereunder will have discretion to vote on such
matters in accordance with their best judgment. As of the date hereof, the LRS
Board of Directors knows of no such other matters.
DISSENTERS' RIGHTS
Pursuant to the Delaware General Corporation Law ( the "DGCL"), any
holder of LRS Common Stock and any holder of LRS Preferred Stock (i) who files
a written demand for appraisal of such shares prior to the vote being
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28
taken at the Special Meeting, (ii) whose shares are not voted in favor of the
Reorganization Agreement, and (iii) who follows certain other procedural
requirements shall, if the Merger is consummated, be entitled to appraisal
rights under Section 262 of the DGCL ("Section 262"). A copy of Section 262 is
attached to this Proxy Statement/Prospectus as Appendix B. See "Rights of
Dissenting Stockholders." A vote against the Reorganization Agreement or an
abstention or a failure to vote will NOT be treated as a demand for appraisal
rights. A separate written demand is required.
Pursuant to the terms of the LRS Stockholders Agreement, holders of
shares of LRS Common Stock subject thereto must waive any dissenters, appraisal
or similar rights with respect to the Merger if the Merger is approved by
holders of a majority of the shares of LRS Common covered thereby. Holders of
approximately 91.2% of the outstanding shares of LRS Common Stock are parties
to the LRS Stockholders Agreement.
The LRS Board will solicit the consent of the holders Nonvested
Restricted Shares and LRS Options to the transactions contemplated by
Reorganization Agreement. This consent will provide that the holders of such
securities waive any applicable dissenters, appraisal or similar rights. Such
consent is being solicited because the holders of Nonvested Restricted Shares
and LRS Options (none of which have vested) will receive consideration equal to
72% of the consideration which would be paid with respect to such securities if
such securities had been fully vested at the time of the Merger. The
agreements under which the Nonvested Restricted Shares and LRS Options were
issued require the holders thereof to waive dissenters, appraisal and similar
rights only upon the condition that (i) the holders receive the same aggregate
consideration as the holders of the vested securities, and (ii) in the case of
Nonvested Restricted Shares, the securities issued in consideration are held in
escrow subject to the vesting restrictions applicable to the Nonvested
Restricted Shares, and in the case of the LRS Options, the LRS Options are
exchanged for new options which are subject to the same vesting restrictions as
the LRS Options. As these conditions will not have been met, holders of
Nonvested Restricted Shares are only required to waive any dissenters rights
and appraisal rights pursuant to the consents being solicited in connection
with the Merger.
THE MERGER
The information contained in this Proxy Statement/Prospectus with
respect to the Merger is qualified in its entirety by reference to the
Reorganization Agreement, which is attached hereto as Appendix A and is
incorporated herein by reference.
GENERAL
The Reorganization Agreement provides for the merger of Acquisition, a
wholly owned subsidiary of Sybron, with and into LRS. LRS will be the
surviving corporation in the Merger and the independent corporate existence of
Acquisition will terminate. At the Effective Time of Merger (as defined
below), all outstanding shares of LRS Common Stock and LRS Preferred Stock
(except Dissenting Shares, if any) will be converted into, and the LRS Warrant
and the LRS Options (other than LRS Options held by persons who have not
consented to such exchange, if any, which will become options to acquire Sybron
Common Stock) will be exchanged for, shares of Sybron Common Stock as provided
in the Reorganization Agreement, and LRS will become a wholly owned subsidiary
of Sybron. The Reorganization Agreement provides that the closing to
consummate the Merger (the "Closing") will occur on the later of (a) March 15,
1998, or (b) the date that is five business days after all the conditions to
Closing set forth in the Reorganization Agreement have been satisfied or
waived, other than those conditions to be accomplished at Closing, or (c) such
other date as Sybron and LRS may mutually agree to in writing (the "Closing
Date"). The Merger will become effective on the date and at the time of the
filing of the Certificate of Merger with the Delaware Secretary of State, or
such other date and time as may be specified in the Certificate of Merger (the
"Effective Time of Merger"). While Sybron and LRS believe that all conditions
to the consummation of the Merger can be met, there can be no assurance as to
this or as to the timing thereof. If the Closing has not occurred on or before
May 1, 1998, either Sybron or LRS may terminate the Reorganization Agreement
and abandon the Merger.
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CONVERSION AND EXCHANGE OF OUTSTANDING LRS SECURITIES
In each case, the ratio for converting or exchanging the various types
of outstanding LRS securities into or for shares of Sybron Common Stock will be
computed by dividing the applicable measure of value determined pursuant to the
Reorganization Agreement for each type of LRS security, as described below, by
the average closing sale price per share of Sybron Common Stock on the NYSE for
the 30 consecutive trading days ending with the fifth trading day prior to the
Closing Date (the "Average Sybron Stock Price"). No fractional shares of
Sybron Common Stock will be issued in the Merger. In lieu thereof, each holder
of LRS securities who would otherwise have been entitled to receive a fraction
of a share of Sybron Common Stock (after all fractional shares to which such
holder is entitled have been combined to yield the largest possible number of
whole shares of Sybron Common Stock) will be paid the cash value of such
fraction based on the Average Sybron Stock Price. See "--Exchange of LRS
Certificates; No Fractional Shares" below. Any shares of LRS Common Stock or
LRS Preferred Stock that are owned by any of the LRS Companies at the Effective
Time of Merger will be cancelled and retired, and no Sybron Common Stock or
other consideration will be issued or delivered in exchange therefor.
The following defined terms in the Reorganization Agreement will be
used in determining the conversion and exchange ratios for outstanding LRS
securities at the Effective Time of Merger (the number before each defined term
is its section number in the Reorganization Agreement):
1.16 "Certain Indebtedness" shall mean the Indebtedness of
the LRS Companies to the State Board of Administration of Florida,
plus accrued and unpaid interest thereon and any prepayment penalties
and/or fees related thereto.
1.21 "Closing Merger Price" shall mean the sum, calculated
as of the Effective Time of Merger, of the Gross Merger Price, plus
all cash and cash equivalents of the LRS Companies, less the amount of
the Certain Indebtedness.
1.23 "Common Equity Merger Price" shall mean, for each
share of LRS Common Stock (other than Nonvested Restricted Shares),
the Net Equity Merger Price divided by the Total Shares Deemed
Outstanding.
1.58 "Gross Merger Price" shall mean One Hundred Twenty
Million Dollars ($120,000,000) less the amount of the payments, to
the extent paid, as set forth on Exhibit 11 hereto, subject to
adjustment as of the Closing pursuant to Sections 2.7(a), 3.1(a) and
(b), and after the Closing pursuant to Sections 10.3 and 10.4 of this
Agreement.
1.72 "LRS Common Stock" shall mean all of the issued and
outstanding shares of common stock, par value $.01 per share, of LRS,
including the Nonvested Restricted Shares.
1.77 "LRS Options" shall mean all of the issued and
outstanding options for LRS Common Stock granted under the LRS
Acquisition Corp. 1994 Stock Plan, as described in the Disclosure
Schedule.
1.79 "LRS Preferred Stock" shall mean all of the issued
and outstanding shares of LRS Series A and Series B Preferred Stock,
par value $1.00 per share.
1.83 "LRS Warrant" shall mean the LRS Acquisition Corp.
Common Stock Purchase Warrant dated June 16, 1994 issued to the LRS
Warrantholder.
1.88 "Net Equity Merger Price" shall mean an amount equal
to the excess of (a) the sum of (i) the Closing Merger Price, plus
(ii) the exercise price of the LRS Warrant, plus (iii) 90% of the
aggregate exercise price of all LRS Options (except for those which
have not consented to the
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transaction), minus (iv) 10% of the aggregate original purchase prices
for the Nonvested Restricted Shares, over (b) the aggregate amount of
the Preferred Stock Value for all of the LRS Preferred Stock.
1.89 "Nonvested Restricted Share Value" shall mean the
fair market value of each Nonvested Restricted Share as of the
Effective Time of Merger which shall be an amount equal to the sum of
(a) the Net Equity Merger Price multiplied by a fraction, the
numerator of which shall be 0.72 and the denominator of which shall be
the Total Shares Deemed Outstanding, plus (b) 10% of the original
purchase price for such Nonvested Restricted Share.
1.90 "Nonvested Restricted Shares" shall mean the shares
of LRS Common Stock issued pursuant to Section 11 of the LRS
Acquisition Corp. 1994 Stock Plan that have not vested as of the
Closing Date.
1.91 "Option Value" shall mean the fair market value of
each LRS Option as of the Effective Time of Merger calculated by
multiplying (a) the excess of (i) an amount equal to the Net Equity
Merger Price multiplied by a fraction, the numerator of which shall be
0.72 and the denominator of which shall be the Total Shares Deemed
Outstanding, over (ii) 90% of the per share exercise price of such LRS
Option, by (b) the number of shares of LRS Common Stock issuable upon
exercise of such LRS Option (assuming 100% vesting).
1.95 "Preferred Stock Value" shall mean, for each share of
LRS Preferred Stock, $1,000 per share plus all accrued and unpaid
dividends thereon (whether or not they have been declared) as of the
Effective Time of Merger.
1.112 "Total Shares Deemed Outstanding" shall mean, as of
the Closing Date, the sum of (i) the number of shares of LRS Common
Stock (other than Nonvested Restricted Shares), plus (ii) .72
multiplied by the number of Nonvested Restricted Shares, plus (iii)
.72 multiplied by the number of shares of LRS Common Stock issuable
upon exercise of all LRS Options (assuming 100% vesting), plus (iv)
the number of shares of LRS Common Stock issuable upon exercise of the
LRS Warrant.
1.113 "Warrant Price" shall mean the fair market value of
the LRS Warrant as of the Effective Time of Merger calculated by (a)
multiplying the Net Equity Merger Price by a fraction, the numerator
of which shall be the number of shares of LRS Common Stock issuable
upon exercise of the LRS Warrant and the denominator of which shall be
the Total Shares Deemed Outstanding, and (b) subtracting therefrom the
aggregate exercise price of the LRS Warrant.
On the Closing Date, Sybron will pay or fund the payment of (a) the
Certain Indebtedness (after LRS has used its available cash balances to repay a
portion of the Certain Indebtedness), and (b) the cash bonuses to be paid to
certain employees of the LRS Companies set forth on Exhibit 11 to the
Reorganization Agreement, net of any amounts required to be withheld with
respect to such payments pursuant to applicable tax laws and subject to any
conditions of payment set forth on Exhibit 11.
Upon the terms and subject to the conditions set forth in the
Reorganization Agreement, at the Effective Time of Merger, and without any
action on the part of the holders thereof (and, in each case, subject to the
provisions of the Reorganization Agreement concerning cash being paid in lieu
of fractional shares):
(a) Each share of LRS Preferred Stock outstanding
immediately prior to the Effective Time of Merger will be converted
into that number of shares of Sybron Common Stock as is equal to the
applicable Preferred Stock Value for such share of LRS Preferred Stock
(as defined above) divided by the Average Sybron Stock Price.
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(b) Each share of LRS Common Stock outstanding
immediately prior to the Effective Time of Merger (other than the
Nonvested Restricted Shares) will be converted into that number of
shares of Sybron Common Stock as is equal to the Common Equity Merger
Price (as defined above) divided by the Average Sybron Stock Price.
(c) Each Nonvested Restricted Share outstanding
immediately prior to the Effective Time of Merger will be converted
into that number of shares of Sybron Common Stock as is equal to the
Nonvested Restricted Share Value (as defined above) divided by the
Average Sybron Stock Price.
However, Dissenting Shares, if any, will not be converted into the
right to receive shares of Sybron Common Stock in the Merger unless and until
the holders thereof have failed to perfect or have effectively withdrawn or
lost their appraisal rights, in which event such Dissenting Shares will be
deemed to have been converted into shares of Sybron Common Stock as of the
Effective Time of Merger as provided in the Reorganization Agreement.
Each LRS Option outstanding immediately prior to the Effective Time of
Merger will be exchanged for that number of shares of Sybron Common Stock as is
equal to the applicable Option Value for such LRS Option (as defined above)
divided by the Average Sybron Stock Price, plus cash in lieu of any fractional
share. However, with respect to any LRS Option for which consent to such
exchange has not been obtained prior to Closing: (i) such LRS Option will,
following the Merger, constitute an option to acquire shares of Sybron Common
Stock, on the same terms and conditions (including vesting provisions) as were
applicable under such LRS Option, based on the same number of shares of Sybron
Common Stock as the holder of such LRS Option would have been entitled to
receive pursuant to the Merger in accordance with the Reorganization Agreement
had such holder exercised such option (assuming 100% vesting) immediately prior
to the Effective Time of Merger, and with an appropriate adjustment to the
exercise price per share; and (ii) the aggregate Option Value for all such LRS
Options will constitute a reduction to the Gross Merger Price.
The LRS Warrant will be exchanged for that number of shares of Sybron
Common Stock as is equal to the Warrant Price (as defined above) divided by the
Average Sybron Stock Price, plus cash in lieu of any fractional share.
Each share of common stock of Acquisition outstanding immediately
prior to the Effective Time of Merger, all of which are owned by Sybron, will
be converted into one share of the common stock of LRS, as the surviving
corporation.
If the Merger had been consummated as of the date of the
Reorganization Agreement, when the Average Sybron Stock Price would have been
$22.96145 (as adjusted for the Sybron 1998 Stock Split), each outstanding share
of Series A Preferred Stock would have been converted into 43.7739571 shares of
Sybron Common Stock, each outstanding share of Series B Preferred Stock would
have been converted into 58.20405 shares of Sybron Common Stock, each
outstanding share of unrestricted LRS Common Stock would have been converted
into 325.0008 shares of Sybron Common Stock, and each outstanding Nonvested
Restricted Share of LRS Common Stock would have been converted into 234.43598
shares of Sybron Common Stock. The LRS Warrant would have been exchanged for
641,291 shares of Sybron Common Stock and each LRS Option, assuming all of the
outstanding LRS Options were exchanged, would have been exchanged for 226.16124
shares of Sybron Common Stock for each share of LRS Common Stock issuable upon
exercise of such option (assuming 100% vesting). See Appendix C to this Proxy
Statement/Prospectus for information regarding the calculation of these
exchange ratios assuming that the Merger had been consummated as of January 23,
1998, the date of the Reorganization Agreement.
The actual conversion and exchange ratios will be determined by the
Average Sybron Stock Price and the other elements of the formulas determining
the ratios at the time the Merger is consummated. If the Average Sybron Stock
Price (as adjusted for the Sybron 1998 Stock Split) is less than $18.4375,
Sybron and LRS shall each have the right but not the obligation to terminate
the Reorganization Agreement prior to Closing. If the Average Sybron Stock
Price is greater than $27.625 (as so adjusted), LRS shall have the right but
not the obligation to terminate the Reorganization
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Agreement prior to Closing. If the Merger had been consummated as of March 9,
1998, the Average Sybron Stock Price would have been $26.9540.
If the Merger had been consummated as of the date of the
Reorganization Agreement, when the Average Sybron Stock Price would have been
$22.96145, approximately 3,747,351 shares of Sybron Common Stock would have
been issuable pursuant to the Reorganization Agreement. If the Average Sybron
Stock Price had been $27.625 as of the date of the Reorganization Agreement,
the number of shares of Sybron Common Stock issuable pursuant to the
Reorganization Agreement would have been approximately 3,114,737; if the
Average Sybron Stock Price at such time had been $18.4375, approximately
4,666,828 shares of Sybron Common Stock would have been issuable pursuant to
the Reorganization Agreement.
Of the 7,755 shares of LRS Common Stock outstanding on the Record
Date, 76.43 were Nonvested Restricted Shares. The number of Nonvested
Restricted Shares reduces each month as additional shares vest on a monthly
basis. As of the Record Date, there were outstanding LRS Options to acquire
437 shares of LRS Common Stock at an exercise price of $200 per share. The LRS
Warrant represents a right to acquire 2,000 shares of LRS Common Stock at an
exercise price of $100 per share. As a party to the Agreement, Liberty, the
LRS Warrantholder, has agreed to the exchange of the LRS Warrant for shares of
Sybron Common Stock as provided in the Reorganization Agreement. It is a
condition to the obligations of Sybron to consummate the transactions
contemplated by the Reorganization Agreement that the holders of all Nonvested
Restricted Shares and the holders of LRS Options covering not less than 400
shares of LRS Common Stock consent to the conversion or exchange of the
Nonvested Restricted Shares and LRS Options as contemplated by the
Reorganization Agreement. See "--Conditions to Consummation of the Merger"
below.
GROSS MERGER PRICE ADJUSTMENTS
The Reorganization Agreement includes provisions for certain
adjustments to the Gross Merger Price, which is the starting point for
determining the Closing Merger Price, the Net Equity Merger Price, the Common
Equity Merger Price, the Nonvested Restricted Share Value, the Option Value and
the Warrant Price which are used to determine the conversion and exchange
ratios for the LRS Common Stock, the LRS Options and the LRS Warrant, as
described above.
In the event that the EBITDA (earnings before interest, income taxes,
depreciation and amortization, as defined in the Reorganization Agreement)
reflected on LRS' audited consolidated financial statements for the year ended
December 31, 1997 were less than $9,500,000, the Gross Merger Price would have
been reduced to the amount that equaled the EBITDA reflected thereon multiplied
by twelve (12), less the amount of the cash bonuses to be paid at the Closing
to certain employees of the LRS Companies as described on Exhibit 11 to the
Reorganization Agreement and reduced by the aggregate Option Value for all LRS
Options, if any, which are not exchanged for Sybron Common Stock. If such
EBITDA were less than $9,000,000, LRS would have been entitled, at its option,
to either terminate the Reorganization Agreement prior to Closing or proceed at
a Gross Merger Price of twelve (12) times EBITDA, minus the amounts referred to
above. However, if LRS elected to terminate the Reorganization Agreement for
this reason, Sybron would have been entitled to void the termination and
proceed as if such EBITDA were $9,000,000, so that the Gross Merger Price would
have been $108,000,000 minus the amounts referred to above. Since the EBITDA
reflected on the LRS financial statements is $9,997,000, the Gross Merger Price
will remain as defined in the Reorganization Agreement without any adjustment
pursuant to this adjustment provision.
Prior to the Closing Date, LRS and Sybron will jointly prepare and
agree on a consolidated balance sheet of LRS prepared in accordance with
generally accepted accounting principles ("GAAP"), applied on a basis
consistent with past practices used in the preparation of LRS' audited
historical financial statements (the "Closing Balance Sheet"). The Closing
Balance Sheet will contain (i) accruals for the Expenses of LRS and the LRS
Stockholders to the extent not paid directly by LRS or the LRS Stockholders
prior to the Closing and (ii) accruals and reserves for certain specified
matters, regardless of whether GAAP would require such accruals or reserves.
If the amount of the stockholders' equity reflected on the Closing Balance
Sheet, as adjusted to add the redemption value of the LRS Preferred Stock (the
"Adjusted Stockholders' Equity"), is less than or greater than $6,797,000, the
Gross Merger Price will be reduced by the amount by which the Adjusted
Stockholders' Equity is less than $6,797,000 or will be increased by the amount
by which the Adjusted Stockholders' Equity is greater than $6,797,000.
However, if an EBITDA adjustment would have been made as described above, the
Adjusted Stockholders' Equity target number would have been reduced by an
amount
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equal to 65% of the EBITDA shortfall below $10,000,000. (Thus, if the EBITDA
number were $9,300,000, the Adjusted Stockholders' Equity target number would
have been reduced by $455,000 to $6,342,000.)
BACKGROUND OF THE MERGER
Prior Negotiations. As discussed below, Sybron and LRS have had
numerous preliminary discussions regarding an acquisition or merger transaction
between "A" Company and Sybron.
On August 23, 1994, just three months after the closing of the
acquisition by LRS of "A" Company and its subsidiaries from Johnson & Johnson,
Kenneth F. Yontz, Chairman of the Board and Chief Executive Officer of Sybron,
sent an unsolicited letter to Michael Kluger, a director of LRS, indicating
Sybron's strong interest in acquiring the "A" Company business. Mr. Kluger,
after consultation with the LRS Board, informed Mr. Yontz that LRS was not
interested in pursuing a sale of "A" Company at that time and instead was
intending to pursue a strategy of independently growing the "A" Company
business and thereby increasing shareholder value. On September 22, 1994, Mr.
Yontz sent a letter to Mr. Kluger reconfirming Sybron's interest in acquiring
the "A" Company business and indicating a willingness to pay approximately $100
million in cash for all of the stock or assets of "A" Company, based on certain
assumptions regarding "A" Company's financial performance. After further
consideration, the Board of Directors of LRS determined that the proposed
acquisition of the "A" Company business by Sybron presented a meaningful avenue
for maximizing shareholder value, and on October 13, 1994, LRS and Sybron
entered into a confidentiality agreement enabling Sybron to conduct its
preliminary due diligence investigation of "A" Company. Shortly thereafter,
however, Mr. Kluger contacted Mr. Yontz and informed him that the Board of
Directors of LRS had concluded that it was not interested in negotiating a sale
of the "A" Company business at that time.
In April 1995, Messrs. Yontz and Kluger had a series of exploratory
discussions regarding a potential transaction. These discussions ended without
any meaningful negotiations taking place.
On February 5, 1996, Mr. Yontz sent an unsolicited letter to Mr.
Kluger expressing Sybron's continued interest in acquiring the "A" Company
business and indicating an interest in purchasing all of the assets of "A"
Company for a price equal to seven times "A" Company's trailing twelve-months
EBITDA. After numerous telephone calls between Mr. Yontz and Mr. Kluger
regarding the terms of the proposed acquisition, the parties determined that
they were unable to arrive at a mutually agreeable price, and on February 16,
1996, Mr. Yontz sent a letter to Mr. Kluger indicating that Sybron's offer had
lapsed.
Negotiation of the Merger. On June 17, 1997, Sybron again approached
LRS to express its interest in a merger transaction with "A" Company. On June
23, 1997, Mr. Yontz presented a proposal to LRS pursuant to which a subsidiary
of Sybron would merge with LRS. The proposal estimated the merger price, to be
paid in shares of Sybron Common Stock, would be twelve times "A" Company's
trailing twelve-months EBITDA. The proposal was subject to the completion of a
satisfactory due diligence review and numerous other closing conditions which
were customary for transactions of this type. At that time, Sybron and LRS
also entered into a new confidentiality agreement to permit Sybron to conduct
its due diligence investigation of "A" Company. The Board of Directors of LRS
considered the potential merger along with several other alternatives and
concluded that a tax-free exchange of shares of capital stock of LRS for shares
of Common Stock of Sybron would be most acceptable to the LRS Stockholders. In
considering the Sybron proposal, the Board of Directors of LRS also considered
whether to continue to operate "A" Company as an independent private company,
to pursue a public offering of "A" Company common stock, or to pursue the sale
of LRS to one or more other potential acquirers. In this regard, the Board of
Directors noted that many of the LRS investors had held shares of LRS Common
for several years and were interested in an opportunity to achieve liquidity in
respect of all or a portion of their shares. For the reasons discussed below
under "--Reasons for the Merger; Recommendation of the LRS Board," the LRS
Board determined that the proposed transaction with Sybron was advisable and in
the best interests of the holders of LRS securities. In considering whether to
continue to operate as an independent, privately held company, the LRS Board
considered the ability of the Company to expand its product offering, the need
for additional capital expenditures by LRS, and increased competition in the
orthodontic products industry. While the LRS Board did not conclude at this
time that it was impractical to continue as an independent privately held
company, as a
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result of the foregoing factors, it authorized Mr. Kluger to negotiate the
terms of a potential merger with Sybron. The LRS Board considered whether to
retain a financial advisor to assist LRS in its negotiations with Sybron
(including, without limitation, rendering a fairness opinion if such
negotiations were successful) and its consideration of alternative
transactions. Ultimately, the LRS Board determined it was not necessary to
retain a financial advisor.
On July 7, 1997, and on several occasions during the following weeks,
senior executives of LRS and Sybron discussed the key considerations in the
proposed merger. The parties agreed in principle that a transaction would
likely be structured as tax-free reverse subsidiary merger with the
shareholders of LRS receiving shares of Sybron Common Stock with an aggregate
value equal to $120 million less the amount of any indebtedness of LRS which
would be repaid by Sybron at the closing of the merger. Additionally, Sybron
indicated that its proposal was based upon its belief that it would be able to
account for the merger as a pooling-of-interests transaction, and the parties
agreed to use their best efforts to ensure pooling-of-interests treatment.
Beginning on or about August 20, 1997, the parties began to negotiate
the terms of a non-binding letter of understanding which was to provide the
basis upon which Sybron would conduct its detailed due diligence investigation
of LRS and proceed towards the negotiation of definitive agreements on an
exclusive basis. The parties concluded these negotiations and executed the
letter of understanding on September 19, 1997.
The parties conducted negotiations regarding the legal and economic
terms of the transaction beginning in October 1997 and executed the definitive
Agreement and Plan of Reorganization on January 23, 1998. On numerous
occasions during the course of these negotiations, members of the Board of
Directors of LRS participated in telephonic conferences to discuss, in rigorous
detail, the provisions of the Reorganization Agreement, with a focus on
ensuring the certainty of closing and minimizing the potential adjustments to
the Merger consideration. On January 22, 1998, prior to the execution and
delivery of the Reorganization Agreement, based upon their intimate familiarity
with the terms and provisions of the Reorganization Agreement, the Board of
Directors of LRS took action by unanimous written consent authorizing the
approval and adoption of the Reorganization Agreement by LRS.
REASONS FOR THE MERGER; RECOMMENDATION OF THE LRS BOARD
LRS. The terms of the Reorganization Agreement are the product of
arm's-length negotiations between representatives of LRS and Sybron. Among the
factors considered by the LRS Board in approving and recommending the Merger,
the Reorganization Agreement and the consummation of the transactions
contemplated thereby, were: (i) the business, operational and financial
prospects of LRS and Sybron; (ii) the LRS Board's opinion that, as of the date
of the Reorganization Agreement, the terms for converting or exchanging LRS
securities into Sybron Common Stock were fair to the LRS securityholders from a
financial point of view; (iii) the procedure used for soliciting and evaluating
proposals for business combinations with LRS; (iv) the opportunity for LRS
securityholders to obtain capital stock representing an interest in a larger,
more diversified enterprise which is actively traded on the NYSE, with
significantly greater liquidity; (v) the ability of Sybron to consummate the
Merger; and (vi) the price Sybron was willing to pay. In making its
determination, the LRS Board did not ascribe relative weights to the factors
which it considered.
In reaching its conclusion to approve and recommend the Merger, the
LRS Board considered a number of financial analyses, including a comparison of
multiples of revenue and earnings paid in similar transactions and an analysis
of the discounted present value of LRS on a stand-alone basis.
The LRS Board considered and rejected retaining a financial advisor to
assist LRS in its negotiations with Sybron (including, without limitation,
rendering a fairness opinion if such negotiations were successful) and its
consideration of other alternative transactions. In reaching this conclusion,
the LRS Board considered the expertise and experience among the directors,
which included Michael Kluger and Peter Bennett, both experienced venture
capitalists and senior officers of Liberty Capital Partners, Inc., a large
venture capital fund manager, and Robert Stockman, a business consultant who
was familiar with and had negotiated numerous transactions in the healthcare
products industry. As a result of the foregoing, and the general business
experience of the other members of the LRS Board, the LRS Board was confident
that it possessed the sophistication, acumen and expertise to evaluate the
fairness of the Merger, and
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recommend it to the LRS stockholders in a manner consistent with its fiduciary
duties to LRS' securityholders, without incurring the expense of retaining a
financial advisor.
Based on the considerations discussed above, the LRS Board has
determined that the Merger is advisable, fair and in the best interests of LRS
and its securityholders and has approved the Merger, the Reorganization
Agreement and the consummation of the transactions contemplated thereby.
THE LRS BOARD HAS APPROVED THE MERGER AS ADVISABLE, FAIR AND IN THE
BEST INTERESTS OF LRS AND THE LRS SECURITYHOLDERS AND UNANIMOUSLY RECOMMENDS A
VOTE FOR THE APPROVAL OF THE REORGANIZATION AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED THEREBY.
Sybron. The Sybron Board of Directors ("Sybron Board") believes the
terms and conditions of the Merger are fair to, and in the best interests of,
Sybron and its shareholders. "A" Company fits well with Ormco Corporation,
Sybron's orthodontic subsidiary, and the Merger will provide an opportunity for
"A" Company and Ormco to more efficiently serve their customers, broaden their
product lines, expand their research and development efforts, and consolidate
operating functions. The consideration to be paid in the Merger reflects the
value that is expected to result from these benefits of the Merger.
INTEREST OF CERTAIN PERSONS IN THE MERGER
In considering the recommendation of the LRS Board with respect to the
Merger, LRS securityholders should be aware that certain members of LRS'
management and the LRS Board, and certain stockholders, have certain interests,
in addition to the interests of stockholders of LRS generally, that are
described below.
Repayment of Indebtedness to the SBA. Sybron will repay all
outstanding indebtedness owed by LRS or its direct or indirect subsidiaries to
the State Board of Administration of Florida (sometimes referred to herein as
the "SBA"), after LRS has used available cash to reduce such indebtedness. The
indebtedness to be repaid is the "Certain Indebtedness" which will be
subtracted from the Gross Merger Price to determine the "Closing Merger Price".
As of the date of the Reorganization Agreement, the amount of such outstanding
indebtedness, including accrued interest, was approximately $32,424,000. The
SBA also owns all of the outstanding LRS Series A Preferred Stock and, through
its 76.5% profits interest in Liberty, has a 76.5% beneficial interest in the
LRS Warrant and in the 1,868.03 shares of LRS Common Stock held of record by
Liberty. See Note 3 of the Notes to Consolidated Financial Statements of LRS
herein.
Bonus Payments. Upon consummation of the Merger, Sybron will make the
following cash payments to certain executive and nonexecutive employees of the
LRS Companies, 59% of whom are not holders of LRS securities, for past
performance and for assisting in completing the transaction. These payments
will be calculated as of the Closing of the Merger as follows:
(i) Each officer, director (not a member of the LRS Board),
manager, supervisor and other select professional of the LRS Companies will
receive a payment equal to a specified percentage of their respective annual
base salary as of December 31, 1997. These payments will be made to up to 39
employees and will be in the aggregate amount of approximately $1,813,000. The
percentages of annual base salary are as follows:
Management Level % of Annual Base Salary
---------------- -----------------------
Officer 100%
Director 50%
Regional Managers 40%
Managers 20%
Supervisors and Select Professionals 10%
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(ii) In addition to the payments to be made as described in clause
(i) above, the following officers of the LRS Companies, who were instrumental
during the due diligence and negotiations process, will receive payments as
follows:
Gordon Nye President and CEO $75,000
David Milner Vice President-Finance 75,000
Richard Poinsett Vice President-Quality Assurance 75,000
and R&D
Charles Madsen Vice President-North American 25,000
Sales
Jan Doorschodt Managing Director of "A" Company 25,000
Europe
Agreements with Gordon Nye. In connection with the Merger, Sybron
will make certain termination payments to Gordon Nye, President and CEO of LRS.
These payments are estimated to be approximately $1,930,000 and consist of (i)
$1,600,000 as a transaction success fee payable under the Employment Agreement
dated as of March 8, 1996, as replaced by a similar Employment Agreement dated
as of June 24, 1997, among LRS, "A" Company and Mr. Nye, and (ii) $330,000 for
deferred compensation payable under the Deferred Compensation Agreement dated
as of June 24, 1997 between "A" Company and Mr. Nye. In addition, Sybron will
forgive certain indebtedness owed by Mr. Nye to the LRS Companies totaling
$105,000 for relocation expenses incurred in 1996. Mr. Nye will repay his
$30,000 promissory note given to LRS as consideration for 300 shares of LRS
Common Stock sold to Mr. Nye pursuant to the March 8, 1996 Employment
Agreement.
Johnston Associates Consulting Agreement. Upon consummation of the
Merger, Sybron will pay approximately $635,000 to Johnston Associates, Inc. in
satisfaction of amounts owed by LRS in connection with the termination of a
consulting agreement pursuant to which Johnston Associates, Inc. has provided
certain consulting services to LRS. The agreement, which expires in May 2004,
permits LRS to terminate the agreement prior to its stated expiration by making
a prepayment of all amounts due thereunder, with such payments discounted at
the rate of 7% per annum. Robert Stockman, a director of LRS, is an affiliate
of Johnston Associates, Inc.
LRS Options and Nonvested Restricted Shares. Five of the executive
officers of LRS hold unvested LRS Options and two of such executive officers
hold Nonvested Restricted Shares that would be exchanged pursuant to the
Reorganization Agreement for an amount of Sybron Common Stock having a value
significantly in excess of the exercise price of the LRS Options and the
purchase price of the Nonvested Restricted Shares. See "Business, Management
and Securityholders of LRS--Principal Stockholders and Security Ownership of
Management of LRS."
LRS Warrant. Pursuant to the Reorganization Agreement, the LRS
Warrant will be exchanged for an amount of Sybron Common Stock having a value
significantly greater than the exercise price of the LRS Warrant. As described
under "Summary--The Parties to the Reorganization-- Liberty," Michael Kluger
and Peter Bennett, directors of LRS, are associates of Liberty. In addition to
the LRS Warrant, Liberty holds of record approximately 24% of the outstanding
LRS Common Stock. See "Business, Management and Securityholders of
LRS--Principal Stockholders and Security Ownership of Management of LRS."
Payments Subject to Shareholder Vote. Certain of the above-described
severance payments, transaction bonuses and exchanges of unvested LRS Options
or Nonvested Restricted Shares for Sybron Common Stock which would otherwise be
subject to the deduction disallowance provisions of Section 280G of the Code
("Parachute Payments") will not be made unless the Parachute Payments are
approved by a separate vote of the LRS Stockholders, which vote determines the
right of the recipients to receive or retain the Parachute Payments (the
"Parachute Payment Vote"). LRS intends to subject the Parachute Payments to a
Parachute Payment Vote. The Parachute Payment Vote will take place prior to
the Closing Date and will require approval of the Parachute Payments by persons
who own,
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immediately before the Merger, more than 75 percent of the voting power of all
outstanding stock of LRS. Holders of LRS Common Stock entitled to vote will be
given adequate disclosure of all material facts concerning all material
payments which constitute Parachute Payments.
Indemnification. The Reorganization Agreement provides that for a
period of at least three years after the Effective Time of Merger, Sybron will,
and will cause LRS to, maintain in effect (which in each case shall cover the
same matters and be on terms no less than favorable than as in effect on the
date of the Reorganization Agreement) bylaw and charter provisions indemnifying
present or former directors and officers of LRS who served as such at or prior
to the Effective Time of Merger.
Post-Merger Severance Policy. After the Merger, Sybron has agreed to
cause LRS, as the surviving corporation, to adopt and abide by the current
severance policy of SDS, with respect to the LRS employees. For purposes of
the severance policy, the LRS employees will receive credit for their years of
service with the LRS Companies and their predecessors. In addition to the
standard severance policy, Sybron will cause LRS to enhance the severance
policy for senior management of LRS, as determined by Sybron after consultation
prior to the Closing with Michael Kluger, Gordon Nye and Kenneth Rainin (the
"LRS Representatives"), and the parties have agreed that $300,000 shall be
booked as an accrual on the Closing Balance Sheet specifically for such
enhanced severance. Sybron has not yet determined which (if any) LRS employees
will be terminated following consummation of the Merger. The allocation of the
enhanced severance payments will be determined by Sybron after consultation
with the LRS Representatives.
Effect of Certain Payments by Sybron. The payments to be made by
Sybron described above will be subtracted from the Gross Merger Price in
determining the amounts to be used for calculating the ratios for the
conversion and exchange of outstanding LRS securities for Sybron Common Stock.
See "--Conversion and Exchange of Outstanding LRS Securities" above.
MANAGEMENT AND OPERATIONS OF LRS AFTER THE MERGER
At the Effective Time of Merger, LRS, as the surviving corporation in
the Merger, will become a wholly owned subsidiary of Sybron. Immediately after
the Merger, "A" Company and the other LRS Companies will continue to be direct
or indirect subsidiaries of LRS. The duly qualified and acting directors and
officers of Acquisition immediately prior to the Effective Time of Merger will
be the directors and officers of LRS immediately after the Effective Time of
Merger. The LRS Certificate and Bylaws (the "LRS Bylaws") as in effect
immediately prior to the Effective Time of Merger will be the Amended and
Restated Certificate of Incorporation and Bylaws of LRS, as the surviving
corporation, thereafter until amended.
SDS will manage the operations of "A" Company and the other LRS
Companies after the Effective Time of Merger. Because "A" Company fits well
with Ormco Corporation, SDS's orthodontic subsidiary, SDS plans to take
advantage of the complementary products of Ormco and "A" Company to provide
orthodontists with a broader range of products, use the strength of each
company to expand research and development, and gain efficiencies by
consolidating certain operating functions.
CONDUCT OF BUSINESS PENDING THE MERGER
Pursuant to the Reorganization Agreement, LRS has agreed, pending
consummation of the Merger, unless otherwise consented to in writing by Sybron
(which consent shall not be unreasonably withheld or delayed), that it will,
and will cause each of the other LRS Companies to, among other things: (i) use
reasonable efforts to carry on its business in the ordinary course and
substantially in the same manner as conducted previously; (ii) use reasonable
efforts to use, operate and maintain and repair all of its material assets and
properties in an ordinary course of business (but LRS shall be permitted to use
available cash of the LRS Companies to accelerate the payment of portions of
the Certain Indebtedness); (iii) use reasonable efforts to not do any act or
omit to do any act, or permit any act or omission to act, which would cause a
breach of certain identified contracts, agreements or commitments, whether oral
or written, to
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which it is a party, and, if a breach should arise, to use reasonable efforts
to timely cure every such breach; (iv) use reasonable efforts to maintain all
of its existing insurance policies or comparable replacement policies in full
force and effect; (v) not (a) except in the ordinary course of business in a
manner consistent with past custom and practice, or as previously disclosed to
Sybron, decrease, or grant any increase, in the rate of pay of any of its
employees, (b) institute any new employee benefit plan or amend any existing
plan, or (c) enter into or modify any written employment arrangement with any
person; (vi) not enter into any material contract or engage in any material
transaction not in the usual and ordinary course of business and consistent
with its normal business practices, and, except as previously disclosed to
Sybron, not purchase, lease, sell or dispose of any material capital asset;
(vii) not make any investment except in the ordinary course of its business, or
create, incur or assume any indebtedness, except for indebtedness incurred in
the ordinary course of its business by any LRS Company as previously disclosed
to Sybron; (viii) use reasonable efforts to preserve its business organization
intact, retain the services of its present officers and key employees and
preserve the good will of suppliers, customers, creditors and others having
business relationships with it; (ix) comply in all material respects with all
applicable laws; (x) timely and properly file all federal, state, local and
foreign tax returns which are required to be filed, and pay or make provision
in accordance with GAAP for the payment of all taxes owed by it except for
taxes being disputed in good faith provided notice thereof is given to Sybron;
(xi) not amend its certificate or articles of incorporation or bylaws; and
(xii) not (a) except upon exercise of outstanding LRS Options, issue any
additional shares of stock of any class or grant any warrants, options or
rights to subscribe for or acquire any additional shares of stock of any class,
(b) declare or pay any dividend or make any capital or surplus distributions of
any nature, except for cash dividends by the other LRS Companies to LRS or "A"
Company and regular cash dividends by LRS on the outstanding LRS Preferred
Stock, or (c) directly or indirectly redeem, purchase or otherwise acquire,
recapitalize, or reclassify any of its capital stock or liquidate in whole or
in part.
REPRESENTATIONS, WARRANTIES AND COVENANTS
The Reorganization Agreement contains various customary
representations and warranties of the parties for a transaction of this kind.
The Reorganization Agreement also contains various customary covenants between
the parties, including that LRS will, and will cause the other LRS Companies
to, provide the agents, accountants, attorneys and representatives of Sybron
with reasonable access to the books, records, financial information,
facilities, key personnel and other documents and materials of the LRS
Companies, subject to the provisions of the Confidentiality Agreement between
the parties, and that each party will use reasonable efforts to cause its
respective representations and warranties contained in the Reorganization
Agreement to be true and correct in all material respects at the Effective Time
of Merger with the same force and effect as if such representations and
warranties had been made at and as of the Effective Time of Merger. Each party
to the Reorganization Agreement has also agreed to take all reasonable actions
necessary to comply promptly with all legal requirements which may be imposed
on it with respect to the Merger, promptly cooperate with and furnish
information to the other parties in connection with any such requirements
imposed upon any of them in connection with the Merger, and take all reasonable
actions necessary to obtain (and cooperate with the other parties in obtaining)
any consent, authorization, order or approval of, or any exemption by, any
governmental entity or other public or private person required to be obtained
by the parties to the Reorganization Agreement in connection with the Merger or
the taking of any action contemplated by the Reorganization Agreement. Each
party has also agreed to use its reasonable efforts to cause all of the
conditions precedent to the obligations of the parties set forth in the
Reorganization Agreement to be satisfied. It is a condition precedent to the
obligations of each of Sybron and LRS to consummate the Merger and related
transactions that each shall have received from the other party a closing
certificate to the effect, among other things, that the representations and
warranties of the other party in the Reorganization Agreement are true and
correct in all material respects as of the Closing Date and that the other
party has performed and complied in all material respects with all of its
obligations under the Reorganization Agreement which are to be performed or
complied with by it prior to or on the Closing Date. See "--Conditions to
Consummation of the Merger" and "--Termination; Amendment; Waiver" below.
The representations and warranties contained in the Reorganization
Agreement are the parties' sole and exclusive representations and warranties
concerning the subject matter thereof. Each party acknowledges and agrees that
all other representations and warranties are specifically disclaimed. All
representations and warranties of the parties contained in the Reorganization
Agreement will survive the Closing Date and the consummation of the
transactions
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contemplated by the Reorganization Agreement, but will expire on the earlier to
occur of the date of completion of the first annual audit of Sybron's financial
statements following the Closing or the one-year anniversary date of the
Closing Date.
CONDITIONS TO CONSUMMATION OF THE MERGER
In addition to the approval of the Reorganization Agreement by the
requisite vote of LRS Stockholders, the respective obligations of the parties
to consummate the Merger are subject to the fulfillment or waiver of certain
conditions specified in the Reorganization Agreement, including among others,
(i) the performance of and compliance in all material respects by the
respective parties with all the obligations under the Reorganization Agreement
required to be performed or complied with prior to or on the Closing Date; (ii)
the absence of any suit, action or other proceeding in which the consummation
of the transactions contemplated by the Reorganization Agreement is restrained
or enjoined or in which the relief requested is to restrain, enjoin or prohibit
the consummation of the transactions contemplated by the Reorganization
Agreement; (iii) the continuing accuracy in all material respects as of the
Closing Date of the representations and warranties of the respective parties
contained in the Reorganization Agreement unless the failure to be true and
correct in all material respects does not have a material adverse effect; (iv)
the absence through the Closing Date of any event, condition or fact which is,
or reasonably may be expected to be, materially adverse to the financial
condition, properties, business or results of operations of the LRS Companies
taken as a whole (an "LRS Material Adverse Effect"), or the absence as of the
Closing Date of any event, condition or fact which is materially adverse to the
financial condition of Sybron and its subsidiaries, taken as a whole; (v) the
securing of all material approvals, authorizations, consents and waivers from
all appropriate state, federal and foreign regulatory authorities required by
law and from all other persons from whom required and which are specifically
designated as required consents for Closing; (vi) compliance with all necessary
requirements of the HSR Act and expiration prior to the Closing Date or
termination by the appropriate agency of any waiting periods applicable to the
Merger and to the transactions described in the Reorganization Agreement which
are imposed by the HSR Act; (vii) the continuing effectiveness of the
Registration Statement and the registration or exemption from registration
under applicable state securities law of the Sybron Common Stock to be issued
pursuant to the Merger; (viii) the approval for listing on the NYSE, subject to
official notice of issuance, of the shares of Sybron Common Stock to be issued
pursuant to the Reorganization Agreement; (ix) the receipt of closing
certificates, legal opinions of counsel and the accountants' comfort letters
called for by the Reorganization Agreement; (x) the receipt by LRS of a tax
opinion of Quarles & Brady, counsel to Sybron, to the effect that the Merger
will be treated for federal income tax purposes as a tax-free reorganization;
(xi) the receipt by Sybron of assurance from KPMG Peat Marwick LLP to the
effect that the Merger will qualify for pooling-of-interests accounting
treatment if consummated in accordance with the Reorganization Agreement; (xii)
certain agreements (as described below) shall have been executed by Affiliates
of LRS and delivered to Sybron; (xiii) the aggregate of the fractional share
interests in Sybron Common Stock to be paid in cash pursuant to the
Reorganization Agreement shall not be more than 2% of the maximum aggregate
number of shares of Sybron Common Stock which could be issued as a result of
the Merger; (xiv) the receipt by Sybron of consents from LRS Optionholders
holding LRS Options covering not less than 400 shares of LRS Common Stock and
consents from all holders of Nonvested Restricted Shares approving the
consummation of the transactions described in the Reorganization Agreement and
the conversion or exchange of the Nonvested Restricted Shares and LRS Options
as contemplated by the Reorganization Agreement; (xv) no more than 2% of the
outstanding shares of LRS Common Stock and no more than 2% of the outstanding
shares of LRS Preferred Stock shall be Dissenting Shares; (xvi) the holders of
the requisite amount of LRS Preferred Stock shall not have asserted the right
to require LRS to redeem their LRS Preferred Stock pursuant to the LRS
Certificate of Incorporation; (xvii) the Registration Rights Agreement and the
Escrow Agreement (as defined below), and appropriate documentation evidencing
payment in full of the Certain Indebtedness and release of all liens related
thereto, shall have been duly executed and delivered; (xviii) the parties shall
have agreed upon the contents of the Closing Balance Sheet; (xix) all
proceedings to be taken in connection with the transactions contemplated by the
Reorganization Agreement, and all documents incident thereto, shall be
reasonably satisfactory in form and substance to Sybron and LRS, respectively,
and each party shall have made available to the other for examination all
documents the other may reasonably request in connection with the transactions
contemplated by the Reorganization Agreement; and (xx) certain other conditions
specified in the Reorganization Agreement shall have been satisfied. The
conditions to Sybron's and Acquisition's obligations to effect the Merger also
include that the above-mentioned governmental and other approvals shall not
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contain any condition applicable to the LRS Companies, Sybron or Acquisition
which is, in the reasonable judgment of Sybron, materially adverse in any
manner to the LRS Companies, Sybron or Acquisition. See "--Regulatory
Requirements" below.
EXCLUSIVE DEALING
As long as the Reorganization Agreement has not been terminated in
accordance with its terms, LRS, for and on behalf of itself and all other LRS
Companies, and their officers and agents, has agreed not to (and not to permit
any employee, officer, director, agent or other person acting on its behalf to)
directly or indirectly solicit, entertain or encourage inquiries or proposals
or enter into an agreement or negotiate with any other person with respect to
the sale of all or any portion of the LRS Common Stock and/or LRS Preferred
Stock, or the business of the LRS Companies, whether such transaction would
take the form of a sale of stock, merger, consolidation, sale of assets or
otherwise.
TERMINATION; AMENDMENT; WAIVER
The Reorganization Agreement may be terminated (whether before or
after approval thereof by the LRS Stockholders) and the transactions
contemplated by the Reorganization Agreement may be abandoned at any time prior
to the Closing, as follows: (i) by mutual written agreement of Sybron and LRS;
(ii) by either Sybron or LRS if termination of the waiting period or clearance
under the HSR Act has not been received within sixty days after the initial
filing thereunder (such clearance has been received); (iii) by LRS pursuant to
the provisions of the Agreement which permit termination by LRS if the Average
Sybron Stock Price (as adjusted for the Sybron 1998 Stock Split) is less than
$18.4375 or more than $27.625; (iv) by Sybron pursuant to the provision which
permits it to terminate if the Average Sybron Stock Price (as adjusted) is less
than $18.4375, or pursuant to the provision which permits Sybron to terminate
if, in the reasonable judgment of Sybron, any matter contained in an update to
LRS' Disclosure Schedule (a "Disclosure Schedule Change") delivered pursuant to
the Reorganization Agreement has or would reasonably be likely to have an LRS
Material Adverse Effect or would reasonably be likely to otherwise be
materially adverse in any manner to Sybron or LRS, as the surviving
corporation, in which event Sybron may terminate the Reorganization Agreement
within ten days following receipt of written notice of such matter from LRS;
(v) by either Sybron or LRS if the other party is in material breach of the
Reorganization Agreement and such breach has not been cured within 15 days of
written notice thereof from the non-breaching party to the breaching party; or
(f) by either Sybron or LRS if the Closing has not occurred on or before May 1,
1998.
If the Reorganization Agreement is terminated by either Sybron or LRS
as provided above, all further obligations of the parties under or pursuant to
the Reorganization Agreement will terminate without further liability of any
party (including their respective directors, officers or other representatives)
to the others, provided that: (a) the obligations of Sybron and Acquisition
under the letter agreement between Sybron and "A" Company dated June 23, 1997,
as modified by subsequent correspondence between the parties and the
Reorganization Agreement (the "Confidentiality Agreement"), and their
obligations contained in certain specified provisions of the Reorganization
Agreement shall survive any such termination; (b) the obligations of LRS
contained in certain specified provisions of the Reorganization Agreement shall
survive any such termination; and (c) each party shall retain any and all
remedies which it may have for breach of contract provided by law based on
another party's willful failure to comply with the terms of the Reorganization
Agreement.
The Reorganization Agreement may be amended by the parties at any time
before or after approval thereof by the LRS Stockholders, but after such
approval, no amendment shall be made without the further approval of the LRS
Stockholders if such amendment changes the Gross Merger Price or materially
adversely affects the rights of the LRS Stockholders. No amendment,
supplement, modification, waiver or termination of the Reorganization Agreement
shall be binding unless executed in writing by the party to be bound thereby.
If any of the conditions to the respective obligations of Sybron or
LRS to consummate the Merger pursuant to the Reorganization Agreement have not
been satisfied, the party whose conditions have not been satisfied may
nevertheless elect to proceed with consummation of the transactions
contemplated by the Reorganization Agreement.
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Any such election to proceed shall be evidenced by a certificate signed on
behalf of the waiving party by an officer of that party.
LRS REPRESENTATIVES
Upon approval by the LRS Stockholders of the Reorganization Agreement,
the Merger and the transactions contemplated by Reorganization Agreement, each
LRS Stockholder (other than holders of Dissenting Shares), LRS Optionholder and
the LRS Warrantholder shall be deemed to have irrevocably appointed Messrs.
Michael Kluger, Gordon Nye and Kenneth Rainin to act as their agents and
attorneys-in-fact (the "LRS Representatives"), with full power of substitution,
to take such actions and execute such documents as may be necessary, convenient
or appropriate to facilitate the consummation of the transactions contemplated
by the Reorganization Agreement, including but not limited to: (i) amendments
to the Reorganization Agreement; (ii) waivers of the satisfaction of any of the
conditions precedent to the obligations of LRS contained in the Reorganization
Agreement; (iii) execution of documents and certificates pursuant to the
Reorganization Agreement; (iv) receipt and forwarding of notices and
communications pursuant to the Reorganization Agreement; and (v) negotiation
and settlement of any disputes, including indemnification matters and
adjustments to the Gross Merger Price as contemplated in the Reorganization
Agreement.
If the LRS Representatives, upon the advice of counsel or otherwise,
believe that they require further authorization or advice from the LRS
Stockholders, the LRS Optionholders or the LRS Warrantholder on any matters
concerning the Reorganization Agreement, the LRS Representatives will be
entitled to seek such further authorization prior to acting on their behalf.
Sybron and Acquisition may rely upon the authority of the LRS
Representatives to act as the agent of the LRS Stockholders, the LRS
Optionholders and the LRS Warrantholder under the Reorganization Agreement.
Any payments by Sybron or Acquisition to the LRS Representatives for the
benefit of the LRS Stockholders, the LRS Optionholders or the LRS Warrantholder
will be considered payments to such persons. The appointments of the LRS
Representatives are coupled with an interest and will be irrevocable by any LRS
Stockholder, LRS Optionholder or the LRS Warrantholder in any manner or for any
reason. This power of attorney will not be affected by the death, disability
or incapacity of any LRS Stockholder, LRS Optionholder or the LRS
Warrantholder. If at any time there is no person acting as an LRS
Representative for any reason, a majority in interest of the LRS Stockholders
will choose a person to act as the LRS Representatives under the Reorganization
Agreement.
INDEMNITY; ESCROW AGREEMENT
The Reorganization Agreement contains certain provisions for
indemnification by LRS and indemnification by Sybron, and provides for an
escrow agreement, in substantially the form of Exhibit 3 attached to the
Reorganization Agreement (the "Escrow Agreement"), to be entered into by and
among Sybron, State Street Bank and Trust Company (the "Escrow Agent"), the LRS
Representatives, the LRS Warrantholder, and certain LRS Stockholders and LRS
Optionholders (collectively, the "Holdback Participants"), pursuant to which a
portion of the shares of Sybron Common Stock 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 the "Affiliates" of LRS (as defined under "--Resale of
Sybron Common Stock") and certain other key "insiders" as determined by the LRS
Board.
Indemnity by LRS
The Reorganization Agreement provides that Sybron and LRS, as the
surviving corporation in the Merger (the "Surviving Corporation"), shall be
indemnified and held harmless from and against, and shall promptly be defended
from and reimbursed for, any and all Damages (as defined therein) which Sybron
or the Surviving Corporation may at any time suffer or incur, or become subject
to, as a result of or in connection with (i) any misrepresentation or breach of
any representation or warranty made by LRS in the Reorganization Agreement (as
updated by any Disclosure Schedule Change) or in the LRS Closing Certificate,
(ii) any failure by LRS to carry out, perform, satisfy or discharge
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in any material respect its obligations under the Reorganization Agreement, and
(iii) any third party suit or other proceeding arising out of Sybron's and the
Surviving Corporation's indemnification rights under the Reorganization
Agreement. No amount shall be payable to Sybron or the Surviving Corporation
for any Damages for which indemnification is available under the Reorganization
Agreement until the amount of each individual Damage is greater than $50,000
and until the aggregate of such indemnification claims exceeds $500,000,
following which Sybron and the Surviving Corporation shall be entitled to
recover only such excess amount.
If the parties agree that the Escrow Account will be sufficient to
fully satisfy any third party claim for which indemnification is sought by
Sybron or the Surviving Corporation, then the LRS Representatives shall have
the right to assume defense of such claim with counsel reasonably acceptable to
Sybron. Any such assumption of defense shall constitute an admission that the
claim is an indemnifiable one pursuant to the indemnification provisions of the
Reorganization Agreement. Any costs incurred by the LRS Representatives in
their defense of such a claim shall be paid out of the Escrow Account.
Indemnity by Sybron
The Reorganization Agreement provides that Sybron and Acquisition
shall indemnify and hold harmless the LRS Stockholders, the LRS Optionholders
and the LRS Warrantholder from and against, and shall promptly defend them from
and reimburse them for, any and all Damages which they may at any time suffer
or incur, or become subject to, as a result of or in connection with (i) any
misrepresentation or breach of any representation or warranty made by Sybron or
Acquisition in the Reorganization Agreement or in the Sybron Closing
Certificate, (ii) any failure by Sybron or Acquisition to carry out, perform,
satisfy or discharge in any material respect its obligations under the
Reorganization Agreement, and (iii) any third party suit or other proceeding
arising out of the indemnification rights of the LRS Stockholders, the LRS
Optionholders and the LRS Warrantholder under the Reorganization Agreement. If
any such indemnification claim is a third party claim, Sybron and the Surviving
Corporation have the right to assume the defense thereof using counsel
reasonably acceptable to the LRS Representatives. Any Damages payable by
Sybron and Acquisition as described above shall be payable in shares of Sybron
Common Stock based on the Average Sybron Stock Price.
Escrow Agreement
In connection with the Closing, Sybron, the Escrow Agent and the
Holdback Participants shall execute and deliver the Escrow Agreement and the
Holdback Participants shall deposit into the Escrow Account (as defined
therein) shares of Sybron Common Stock having an aggregate value, based on the
Average Sybron Stock Price, of $6,300,000 (the "Escrow Shares"). As described
above, the Escrow Account will be established to secure the indemnification
rights of Sybron and the Surviving Corporation and to provide the LRS
Representatives with a source for recovery of defense costs incurred in
connection with a third party claim. The Escrow Agreement shall set forth the
procedures to be followed by the parties in the event a claim is made for which
indemnification is available under Article X of the Reorganization Agreement.
Any party who makes an indemnification claim pursuant to the Escrow Agreement
shall be referred to as a "Claimant" herein. The Escrow Shares will amount to
less than 10% of the shares of Sybron Common Stock to be issued pursuant to the
Reorganization Agreement.
While their shares of Sybron Common Stock are held in the Escrow
Account, the Holdback Participants shall be entitled to all rights of ownership
thereof, including without limitation the right to vote and sell the shares;
provided, however, that upon any sale of 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). In the Escrow Agreement, the Holdback
Participants will appoint 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 delivered at Closing
and in accordance with the provisions of the Registration Rights Agreement.
See "--Resale of Sybron Common Stock" below. The Escrow Agreement also
requires that any such sale involve 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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If a claim is asserted against the Escrow Account which does not draw
objection either from the LRS Representatives, if the Claimant is Sybron or the
Surviving Corporation, or from Sybron or the Surviving Corporation, if the
Claimant is the LRS Representatives, the Escrow Agent shall disburse from the
Escrow Fund the full amount of the claim (the "Claimed Amount") to the
Claimant. In the event the Escrow Fund is then comprised partly of cash and
partly of Escrow Shares, the LRS Representatives shall be entitled to designate
whether the Claimed Amount shall be distributed in cash, Escrow Shares or a
combination thereof. For purposes of any distribution pursuant to the Escrow
Agreement made in Escrow Shares, such shares shall be valued at the Average
Sybron Stock Price. Except with respect to specific unresolved indemnification
claims, the Escrow Agreement will terminate on the earlier of the date the
first audit of Sybron's financial statements following the Closing is completed
or the one year anniversary of the Closing Date. Upon resolution of each such
pending indemnification claim, the portion of the Escrow Fund attributable to
that claim shall be distributed to the party entitled thereto in the same
fashion as described above with respect to claims to which no objection is
made. The Holdback Participants shall be entitled to all Interest (as defined
in the Escrow Agreement) earned with respect to any cash comprising the Escrow
Fund. Any distributions made to the Holdback Participants pursuant to the
Escrow Agreement, whether in cash or Escrow Shares, shall be made
proportionately based on their respective contributions to the Escrow Fund.
EXCHANGE OF LRS CERTIFICATES; NO FRACTIONAL SHARES
Prior to the Closing, Sybron and the LRS Representatives will enter
into an exchange agreement, in substantially the form of Exhibit 4 attached to
the Reorganization Agreement (the "Exchange Agreement"), with BankBoston, N.A.
(the "Exchange Agent"), to effect the exchange of LRS securities in connection
with the Merger. BankBoston, N.A., is also the transfer agent and registrar
for the Sybron Common Stock.
As of the Effective Time of Merger, Sybron will deposit with the
Exchange Agent, for the benefit of the holders of LRS Common Stock, LRS Options
(other than any LRS Options for which consent to exchange in connection with
the Merger has not been obtained), the LRS Warrant and LRS Preferred Stock, for
delivery in accordance with the Reorganization Agreement through the Exchange
Agent, certificates representing the shares of Sybron Common Stock issuable
pursuant to the Reorganization Agreement. (Such certificates for shares of
Sybron Common Stock, together with any cash to be paid for fractional share
interests, are referred to as the "Exchange Fund.") As provided in the Exchange
Agreement and the Escrow Agreement, the Sybron Common Stock certificates will
be divided into two groups: the first to be distributed by the Exchange Agent
to the holders of LRS securities pursuant to the Reorganization Agreement and
the second to be distributed by the Exchange Agent to the Escrow Agent to be
held in accordance with the Escrow Agreement.
Prior to the Closing, the Exchange Agent will mail to the holder of
record of the LRS Warrant and each LRS Option and to each holder of record of a
certificate or certificates representing outstanding shares of LRS Common Stock
or LRS Preferred Stock (which stock certificates, together with the LRS Warrant
certificate and each LRS Option agreement to be exchanged for Sybron Common
Stock, are referred to collectively as the "LRS Certificates"): (a) a form of
letter of transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to the LRS Certificates shall pass, only upon the
Effective Time of Merger and delivery of the LRS Certificates to the Exchange
Agent) and (b) instructions for effecting the surrender of LRS Certificates in
exchange for certificates representing shares of Sybron Common Stock. PLEASE
NOTE THAT SECURITYHOLDERS OF LRS SHOULD NOT SUBMIT THEIR LRS CERTIFICATES FOR
EXCHANGE UNTIL SUCH LETTER OF TRANSMITTAL AND INSTRUCTIONS ARE RECEIVED.
Upon surrender of an LRS Certificate for cancellation to the Exchange
Agent, together with a duly executed letter of transmittal and such other
documents as the Exchange Agent may reasonably require, the holder of such LRS
Certificate will be entitled to receive in exchange therefor, following the
Effective Time of Merger and at Closing, if practicable, a certificate
representing such holder's Distributed Shares (as defined below) plus cash in
lieu of any fractional share of Sybron Common Stock to which such other holder
would otherwise be entitled, and the LRS Certificate so surrendered will be
cancelled. The term "Distributed Shares," with respect to any holder of an LRS
Certificate, means that number of whole shares of Sybron Common Stock to which
such holder is entitled in respect of such LRS Certificate pursuant to the
Reorganization Agreement minus any Holdback Shares. The term "Holdback
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Shares" means the shares of Sybron Common Stock that are deposited into the
Escrow Account. The total number of Holdback Shares shall be equal to
$6,300,000 divided by the Average Sybron Stock Price.
At the Effective Time of Merger, the stock transfer books of LRS will
be closed and there will be no further registration of transfers of shares of
LRS Common Stock or LRS Preferred Stock thereafter on the records of LRS. From
and after the Effective Time of Merger, the holders of LRS Certificates
outstanding immediately prior to the Effective Time of Merger will cease to
have any rights with respect to the LRS securities formerly represented thereby
except as otherwise provided in the Reorganization Agreement or by law.
In the event of a transfer of ownership of shares of LRS Common Stock
or LRS Preferred Stock which has not been registered in the transfer records of
LRS, a certificate representing the proper number of shares of Sybron Common
Stock may be issued to the transferee if the LRS Certificate formerly
representing such shares of LRS Common Stock or LRS Preferred Stock is
presented to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer, and by evidence that any applicable stock
transfer taxes have been paid.
Until surrendered as contemplated by the Reorganization Agreement,
each LRS Certificate shall be deemed at all times after the Effective Time of
Merger to represent only the right to receive upon surrender, subject to the
terms and conditions of the Reorganization Agreement, a certificate
representing shares of Sybron Common Stock and cash in lieu of any fractional
share of Sybron Common Stock as contemplated by the Reorganization Agreement.
If an LRS Certificate has been lost, stolen, destroyed or mutilated, a
certificate representing the proper number of shares of Sybron Common Stock
issuable therefor may be issued to the holder upon receipt by the Exchange
Agent of reasonably satisfactory evidence of ownership and the loss, theft,
destruction or mutilation of the LRS Certificate and, in the case of any loss,
theft or destruction, a reasonably satisfactory indemnity and, in the case of a
mutilation, all remaining portions of such LRS Certificate.
No dividends or other distributions declared or made after the
Effective Time of Merger with respect to Sybron Common Stock with a record date
after the Effective Time of Merger will be paid to the holder of any
unsurrendered LRS Certificate with respect to the shares of Sybron Common Stock
represented thereby until surrender of such LRS Certificate. Subject to the
effect of any applicable law, following surrender of any such LRS Certificate,
there will be paid to the holder of the certificate representing whole shares
of Sybron Common Stock issued in exchange therefor, without interest, any such
dividends or distributions to which such holder is entitled.
All shares of Sybron Common Stock issued upon conversion of the LRS
Common Stock and LRS Preferred Stock or in exchange for the LRS Options and LRS
Warrant in accordance with the terms of the Reorganization Agreement (and any
cash paid in lieu of fractional share interests) shall be deemed to have been
issued (and paid) in full satisfaction of all rights pertaining the LRS Common
Stock, LRS Options, LRS Warrant and LRS Preferred Stock.
No fractional shares of Sybron Common Stock will be issued in the
Merger. All fractional share interests of a holder of more than one LRS
Certificate at the Effective Time of Merger will be aggregated to maximize the
number of whole shares of Sybron Common Stock to be issued and minimize the
fractional interests to be paid in cash. If a fractional share interest
results after such aggregation, each holder of a fractional share interest will
be paid an amount in cash equal to the product obtained by multiplying such
fractional share interest by the Average Sybron Stock Price.
The aggregate Holdback Shares will be deposited into the Escrow
Account and held by the Escrow Agent as described in the Escrow Agreement for
purposes of satisfying the indemnification obligations of LRS under the
Reorganization Agreement. The value of Sybron Common Stock for purposes of
such indemnification obligation settlements will be the Average Sybron Stock
Price. Upon the earlier to occur of the date that the first audit of Sybron's
financial statements following the Closing is completed or the one-year
anniversary date of the Closing Date, the Holdback Shares held by the Escrow
Agent, less an appropriate number of Holdback Shares to cover specific
unresolved claims, will be delivered to the Holdback Participants. See
"--Indemnity; Escrow Agreement" above.
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Any portion of the Exchange Fund which remains undistributed one year
after the Effective Time of Merger because LRS Certificates have not been duly
surrendered to the Exchange Agent will be delivered to Sybron, upon demand, and
any affected former LRS Stockholder and LRS Optionholder shall thereafter look
only to Sybron for payment of its claim for shares of Sybron Common Stock, any
cash in lieu of fractional share interests, and any dividends or distributions
with respect to Sybron Common Stock. Neither the Exchange Agent nor any party
to the Reorganization Agreement will be liable to any LRS Stockholder, LRS
Optionholder or the LRS Warrantholder for any shares of Sybron Common Stock (or
dividends or distributions with respect thereto) or cash delivered to a public
official pursuant to any abandoned property, escheat or similar law.
Sybron will be entitled to deduct and withhold from the consideration
otherwise payable pursuant to the Reorganization Agreement to any LRS
Stockholder, LRS Optionholder and the LRS Warrantholder such amounts (in shares
of Sybron Common Stock and based upon the Average Sybron Stock Price) as Sybron
is required to deduct and withhold with respect to the making of such payment
under the Code, or any state, local or foreign tax law. To the extent that
amounts are so withheld by Sybron, the withheld amounts will be treated for all
purposes of the Reorganization Agreement as having been paid to the LRS
Stockholder, LRS Optionholder or LRS Warrantholder in respect of which such
deduction and withholding was made.
Shares of LRS Common Stock and LRS Preferred Stock which are held by
LRS Stockholders who did not vote in favor of the Merger and who comply with
all other relevant provisions of Section 262 of the DGCL ("Dissenting Shares")
will not be converted into the right to receive shares of Sybron Common Stock,
unless and until such holders shall have failed to perfect or shall have
effectively withdrawn or lost their rights to appraisal. In that event, such
holders' shares of LRS Common Stock and/or LRS Preferred Stock will be deemed
to have been converted into shares of Sybron Common Stock as of the Effective
Time of Merger as provided in the Reorganization Agreement. See "Rights of
Dissenting Stockholders."
REGULATORY REQUIREMENTS
Consummation of the Merger is subject to requisite regulatory
approvals. Set forth below is a summary of certain regulatory requirements
affecting the Merger.
Pre-Merger Antitrust Notification. The HSR Act and the rules and
regulations thereunder provide that certain acquisition transactions (including
the Merger) may not be consummated until certain information has been submitted
to the Antitrust Division and the FTC and specified HSR Act waiting period
requirements have been satisfied. Sybron and LRS filed appropriate
notifications under the HSR Act on January 26, 1998. The waiting period under
the HSR Act expires or terminates 30 days after such a filing unless early
termination is received or a request for additional information is made by
either the Antitrust Division or the FTC. The waiting period was terminated by
early termination on February 4, 1998, so this condition to the Merger has been
satisfied. The expiration or early termination of the HSR Act waiting period
does not preclude the Antitrust Division or the FTC from challenging the Merger
on antitrust grounds.
Post-Closing Notification in Germany. The Law Against Restraints of
Competition of the Federal Republic of Germany requires that the acquiring
party in certain acquisition transactions file a post-closing notification with
the German Federal Cartel Office. The transactions contemplated by the
Reorganization Agreement are notifiable under German Law, and accordingly,
Sybron will undertake to complete the filing after the Closing.
General. Under the Reorganization Agreement, each party has agreed to
use reasonable efforts to obtain all material regulatory approvals required by
law. Sybron and LRS believe that they will receive the requisite regulatory
approvals for the Merger, but there can be no assurance that such approvals
will be received or that, if received, the approvals will be obtained on terms
which satisfy the applicable conditions to the Reorganization Agreement. In
this regard, Sybron may terminate the Reorganization Agreement and abandon the
Merger in the event that regulatory approvals are received but those regulatory
approvals impose terms which in Sybron's reasonable judgment are materially
adverse to the LRS Companies, Sybron or Acquisition. To the parties'
knowledge, the satisfaction of the
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HSR Act notification requirements is the only material regulatory requirement
applicable to the Merger. See "--Conditions to Consummation of the Merger"
above.
CETAIN FEDERAL INCOME TAX CONSEQUENCES
It is a condition to the consummation of the Merger that LRS receive an
opinion of Quarles & Brady, counsel to Sybron, in substantially the form of
Exhibit 7 attached to the Reorganization Agreement and dated as of the Closing
Date, to the effect that that Merger will be treated for federal income tax
purposes as a reorganization within the meaning of Section 368(a) of the Code,
and that Sybron, Acquisition and LRS will each be a party to that
reorganization within the meaning of Section 368(b) of the Code. It is a
condition to the obligations of Sybron and Acquisition to consummate the Merger
that LRS shall have delivered the executed representations letters required by
Quarles & Brady in order for it to render such opinion. In rendering such
opinion, Quarles & Brady will rely upon the accuracy and completeness of the
representations contained in the supporting representations letters to be
provided by Sybron, LRS, certain LRS Stockholders and the LRS Warrantholder.
Provided that the requisite representations are made, and provided that
there shall have been no adverse changes in applicable law or facts at such
time, such opinion will be delivered to the effect that, for federal income tax
purposes:
(i) the Merger will be treated as a reorganization within the
meaning of Section 368(a) of the Code;
(ii) Sybron, Acquisition and LRS will each be a party to that
reorganization within the meaning of Section 368(b) of the Code;
(iii) no gain or loss will be recognized by Sybron, Acquisition or
LRS as a result of the Merger;
(iv) no gain or loss will be recognized by the LRS Stockholders and
the LRS Warrantholder with respect to the exchange of their shares of LRS
Common Stock (excluding Nonvested Restricted Shares), shares of LRS
Preferred Stock or the LRS Warrant for Sybron Common Stock in the Merger
(other than with respect to any cash paid in lieu of fractional shares of
Sybron Common Stock);
(v) the tax basis of the shares of Sybron Common Stock into which
shares of LRS Common Stock (excluding Nonvested Restricted Shares),
shares of LRS Preferred Stock or the LRS Warrant are converted will be
the same as the basis of the shares of LRS Common Stock, shares of LRS
Preferred Stock or the LRS Warrant converted into such Sybron Common
Stock, reduced by any amount allocable to the fractional share interests
for which cash is received;
(vi) the holding period for shares of Sybron Common Stock into which
shares of LRS Common Stock (excluding Nonvested Restricted Shares) or
shares of LRS Preferred Stock are converted will include the period that
such shares of LRS Common Stock or shares of LRS Preferred Stock were
held by the holder, provided that such shares were held as capital assets
of the holder at the Effective Time of Merger; and
(vii) cash payments received by an LRS Stockholder or the LRS
Warrantholder in lieu of a fractional share of Sybron Common Stock will
be treated as received in redemption of such fractional share, subject to
the provisions of Section 302 of the Code, as if such fractional share of
Sybron Common Stock had been issued in the Merger and then redeemed by
Sybron.
There can be no assurance that contrary positions may not be asserted by
the Internal Revenue Service. No rulings have been or are expected to be
sought from the Internal Revenue Service concerning the tax consequences of the
Merger. The opinion of Quarles & Brady will express no opinion with respect to
the federal income tax treatment arising out of the Merger and/or the
transactions contemplated by the Reorganization Agreement of the LRS
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Optionholders with respect to the LRS Options or the holders of Nonvested
Restricted Shares with respect to the Nonvested Restricted Shares. No opinion
will be expressed as to the holding period of the shares of Sybron Common Stock
for which the LRS Warrant is exchanged; however, the parties believe that such
holding period will include the period during which the LRS Warrant was held.
No opinions will be expressed as to the tax treatment of Dissenting Shares, if
any.
A successful IRS challenge to the reorganization status of the Merger
would result in each LRS Stockholder and the LRS Warrantholder recognizing gain
or loss with respect to the shares of LRS Common Stock, shares of LRS Preferred
Stock or the LRS Warrant surrendered equal to the difference between the LRS
Stockholder's or the LRS Warrantholder's basis in such shares of LRS Common
Stock, shares of LRS Preferred Stock or LRS Warrant and the fair market value,
as of the Effective Time of Merger, of the Sybron Common Stock received in
exchange therefor (except that special rules would continue to apply to
determine the income recognized on the conversion of Nonvested Restricted
Shares into Sybron Common Stock). In such event, an LRS Stockholder's or the
LRS Warrantholder's basis in the Sybron Common Stock so received would equal
its fair market value, and the LRS Stockholder's or the LRS Warrantholder's
holding period for such stock would begin the date after the Merger.
THE FOREGOING CONSTITUTES ONLY A GENERAL DESCRIPTION OF CERTAIN FEDERAL
INCOME TAX CONSEQUENCES OF THE MERGER WITHOUT REGARD TO THE PARTICULAR FACTS
AND CIRCUMSTANCES OF EACH SECURITYHOLDER OF LRS. ALL SECURITYHOLDERS ARE URGED
TO CONSULT THEIR OWN TAX ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM
OF THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED IN CONNECTION THEREWITH,
INCLUDING THE APPLICABILITY AND EFFECT OF FEDERAL, STATE, LOCAL, FOREIGN AND
OTHER TAX LAWS.
RESALE OF SYBRON COMMON STOCK
The shares of Sybron Common Stock issued pursuant to the Reorganization
Agreement will be freely transferable under the Securities Act, except that
shares received by any person who may be deemed to be an "affiliate" (as that
term is used in paragraphs (c) and (d) of Rule 145 under the Securities Act,
which may include, without limitation, directors, executive officers and
principal shareholders) 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. It is a condition to the obligations of
Sybron and Acquisition to consummate the Merger that LRS shall deliver to
Sybron a letter from each Affiliate (an "Affiliate Letter") in substantially
the form of Exhibit 1 attached to the Reorganization Agreement. As of the date
of the Reorganization Agreement, LRS has identified its Affiliates as being
each of its directors, each of its executive officers, Liberty and the SBA.
An Affiliate Letter will constitute an agreement by each Affiliate with
Sybron to the effect that such Affiliate: (i) will not sell, transfer or
otherwise dispose of any shares of Sybron Common Stock issued to such person in
connection with the Merger, 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) has not made and will
not make any disposition or other reduction of such person's risk relative to
any Sybron or LRS stock during the period (the "risk-sharing period")
commencing 30 days prior to the Effective Time of Merger and ending at such
time as the financial results covering at least 30 days of post-Merger combined
operations have been published by Sybron. The "affiliates" of Sybron are also
subject to the restrictions referred to in clause (ii) during the risk-sharing
period.
Sybron has agreed to enter into a registration rights agreement with the
Affiliates of LRS, to be dated the Closing Date, in substantially the form of
Exhibit 8 attached to the Reorganization Agreement (the "Registration Rights
Agreement"). In the Registration Rights Agreement, Sybron will agree to
register for resale, after the risk-sharing period has been satisfied, the
shares of Sybron Common Stock received by the Affiliates in connection with the
Merger, either by filing a post-effective amendment to the Registration
Statement which would replace this Proxy Statement/Prospectus with a reoffering
prospectus, or by filing another registration statement to cover such resales.
The Registration Rights
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Agreement will contain customary provisions for indemnification against
certain liabilities, including liabilities under the Securities Act.
This Proxy Statement/Prospectus does not cover resales of Sybron Common
Stock by the Affiliates of LRS, but, as discussed above, the Registration
Statement may be amended to include a reoffering prospectus that would cover
such resales.
ACCOUNTING TREATMENT
The Merger has been structured to qualify as a pooling of interests for
accounting and financial reporting purposes. The obligation of Sybron to
consummate the Merger is subject to the receipt of assurance from KPMG Peat
Marwick LLP, Sybron's independent accountants, that the Merger will qualify for
pooling-of-interests accounting treatment. See "--Conditions to Consummation
of the Merger" above.
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BUSINESS OF SYBRON
GENERAL
Sybron, through its subsidiaries, is a leading manufacturer of value-added
products for the laboratory and professional dental and orthodontic markets in
the United States and abroad. Its laboratory business provides plastic
labware, microscope slides, disposable diagnostic products, consumables,
temperature control apparatus and water purification systems to industrial,
academic, clinical, governmental and biotechnology laboratories. Its dental
and orthodontic businesses provide a diversified line of consumable products to
dentists and orthodontic appliances and related products to orthodontists.
Sybron 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. Sybron'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, Sybron's sales outside the
United States represented approximately 32% of net sales.
The terms "Company" and "Sybron" refer to Sybron International Corporation
and its subsidiaries and their respective predecessors. Sybron's fiscal year
ends on September 30. All references to "1995", "1996" or 1997" mean the
fiscal year ended September 30, 1995, 1996 or 1997, respectively.
Sybron's laboratory business is operated through three subsidiaries and
their affiliates. Nalge Nunc International Corporation ("NNI") develops,
manufactures, and markets a diversified line of reusable and disposable plastic
labware, high quality bio-pharmaceutical packaging products, recreational
containers, industrial products such as plastic tubing, sanitary tubing and
fittings, auto sampler vials and seals, accessories for chromatography, and
environmental testing containers. Erie Scientific International Corporation
("Erie") develops, manufactures, and markets microscope slides, cover glass,
consumables used in clinical laboratories, disposable diagnostic products, test
kits, drug screening products and thin glass mirrors. Barnstead Thermolyne
Corporation ("Barnstead/Thermolyne") develops, manufactures and markets
precision heating, stirring, measuring, sterilizing, analytical and temperature
control apparatus and water purification systems to industrial, clinical,
academic, governmental and biotechnology laboratories.
Sybron's dental and orthodontic businesses are operated through Sybron
Dental Specialties, Inc. ("Sybron Dental Specialties"), which in turn operates
two subsidiaries and their affiliates. Kerr Corporation ("Kerr") develops,
manufactures and markets a broad range of consumable products for use in
restorative, prosthetic, and endodontic dentistry. Ormco Corporation ("Ormco")
develops, manufactures and markets a broad line of orthodontic appliances
including bands, brackets, wire, adhesives, and ancillary equipment used during
the course of orthodontic treatment.
NNI, Erie, Barnstead/Thermolyne and Sybron Dental Specialties, including
Kerr and Ormco, are referred to herein collectively as the "Operating
Subsidiaries."
Sybron, a Wisconsin corporation, is the successor by merger in January of
1994 to Sybron Corporation, a Delaware corporation. The merger was
accomplished to change Sybron's corporate domicile from Delaware to Wisconsin.
Sybron Corporation, originally named Sybron Acquisition Company, was formed in
1987. In 1987, through an indirect wholly owned subsidiary, Sybron Acquisition
Company acquired all of the outstanding shares of a company known at the time
as Sybron Corporation (the "Acquired Company") in a leveraged buyout
transaction (the "1987 Acquisition").
OPERATING STRATEGIES
In 1986, when the previous Sybron was taken private in a leveraged buyout
transaction, management initiated programs to reduce corporate and subsidiary
expenses, rationalize certain production facilities and sell certain operating
businesses. The Company was then resold in 1987 in a second leveraged buyout
transaction. After the 1987 buyout, management focused on maximizing cash flow
in order to repay debt incurred in connection with the 1987 Acquisition. In
1992, the Company went public and the proceeds of the initial public offering
were used to retire a portion of the
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1987 Acquisition debt. The balance of the 1987 Acquisition debt was refinanced
in 1993 when the Company put in place a bank credit facility which, in addition
to refinancing existing debt, provided it with a line of credit designed to
allow the initiation of an acquisition program. This line of credit was
amended in 1995 and 1997 to accommodate the growth of Sybron's acquisition
program. The acquisition program, together with the operating strategies which
management has executed consistently since the 1986 transaction, is designed to
expand and strengthen Sybron's worldwide sales and operating margins. Key
elements of Sybron's strategy are:
Competitive Focus. Sybron has focused on product development and
manufacturing and marketing efforts, increasing its range of specialty
and value-added laboratory, dental and orthodontic products and
increasing the range of end users for its products.
Acquisitions. Since 1993, when Sybron adopted its strategy of
growth through acquisitions, it has made more than 40 acquisitions
(including a merger and a joint venture) in the United States and abroad,
including 12 completed in 1997 and five completed in fiscal 1998 through
January 31, 1998. The Operating Subsidiaries have been able to use their
existing distribution channels to market many of the acquired product
lines. Sybron has achieved other synergies, such as the elimination of
duplicative administrative functions or the combining of manufacturing
operations with some of these acquisitions.
New Product Introductions. Each of the Operating Subsidiaries has
consistently developed and introduced new products which have contributed
to net sales. Sybron believes that new product introductions are
important to the ability of the Operating Subsidiaries to maintain their
competitive positions.
International Growth. Sybron has devoted significant resources to
international manufacturing, sales and marketing efforts in order to
capitalize on international sales opportunities. As a result of these
efforts, sales outside the United States have grown from $75.2 million in
the twelve months ended September 30, 1987 to $256.1 million in 1997. In
1995, 1996 and 1997, sales outside the United States represented
approximately 36%, 36% and 32% of net sales, respectively. The decrease
in the percentage of foreign sales to total sales is primarily due to
acquisitions, which have been predominantly in the United States, and a
general strengthening of the U.S. dollar in 1997.
The successful execution of these strategies resulted in a significant
expansion of the business in 1997. Overall sales growth was $120.6 million, or
$135.5 million prior to negative foreign currency effects. Internal sales
growth, prior to $14.9 million of negative currency effects, was $36.2 million
(up 5.4% from 1996). Acquisition growth has been more significant within the
laboratory segment of the business than the dental segment because the
worldwide market for laboratory products is substantially larger than that for
dental products. Net sales in the laboratory segment as a percentage of total
net sales were 51.7%, 58.5% and 61.8% in 1995, 1996 and 1997, respectively.
Sybron intends to pursue its acquisition strategy in both the laboratory and
dental segments but, due to the disproportionate size of these markets, it
expects to see more opportunity for growth in the laboratory segment. In
addition to the growth contributed from acquired businesses, Sybron has been
able to realize cost benefits derived from the elimination of duplicative costs
in administrative and manufacturing areas.
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
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"Cautionary Factors" in the Sybron documents incorporated herein by reference.
See "Incorporation of Certain Documents by Reference."
CERTAIN FINANCIAL INFORMATION
The following table sets forth Sybron's net sales by Operating Subsidiary
and business segment for the years indicated.
Years Ended September 30,
-------------------------------
1995 1996 1997
--------- --------- ---------
(In thousands)
Laboratory Segment:
NNI $137,296 $220,352 $257,664
Erie 74,062 110,747 163,605
Barnstead/Thermolyne 57,039 63,225 69,996
--------- --------- ---------
Subtotal 268,397 394,324 491,235
--------- --------- ---------
Dental Segment:
Sybron Dental Specialties 250,803 280,133 303,852
--------- --------- ---------
Total Sales $519,200 $674,457 $795,087
========= ========= =========
Other financial information about Sybron's business segments and foreign
operations is included in Note 15 to the consolidated financial statements in
Item 8 of Sybron's Annual Report on Form 10-K for the year ended September 30,
1997, and such information is incorporated herein by reference.
OTHER INFORMATION
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."
ACQUISITION
Acquisition, a wholly-owned subsidiary of Sybron, is a Delaware
corporation which was incorporated by Sybron for the purpose of consummating
the Merger. Acquisition will have no operations except as contemplated by the
Reorganization Agreement. At the Effective Time of Merger, Acquisition will be
merged with and into LRS, which will be the surviving corporation in the
Merger, and each share of common stock of Acquisition issued and outstanding at
the Effective Time of Merger will be converted into one share of the common
stock of LRS, as the Surviving Corporation. As a result, immediately following
the Merger, Acquisition will cease to exist and LRS will be a wholly-owned
subsidiary of Sybron.
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BUSINESS, MANAGEMENT AND SECURITYHOLDERS OF LRS
ORGANIZATION AND COMMENCEMENT OF OPERATIONS
LRS, through its wholly owned subsidiaries, designs, manufactures, markets
and distributes orthodontic appliances and products. LRS, a Delaware
corporation, is a holding company whose principal subsidiary is "A" Company.
LRS has five other direct or indirect wholly owned subsidiaries.
LRS was incorporated on May 16, 1994 for the purpose of acquiring from
Johnson & Johnson, in a highly leveraged transaction, the orthodontic appliance
business conducted through the name of "A" Company. The acquisition was
completed effective June 16, 1994. Prior to that date, the activities of LRS
consisted of organization and formation related transactions; its operations
commenced upon completing the acquisition. The equity for the transaction was
primarily provided by certain individual investors and the SBA. Pursuant to an
investment management agreement, Liberty Partners, L.P. ("Liberty Partners")
invests on behalf of the SBA in debt and equity securities of middle market
companies. The SBA has delegated all voting and dispositive power over its
securities to Liberty Partners. The SBA also provided $41,000,000 of debt
financing for the transaction.
GENERAL OVERVIEW
"A" Company is a developer, manufacturer and provider of orthodontic
products. "A" Company concentrates on the fixed appliance treatment segment of
the orthodontic market (commonly known as "braces") and supplies orthodontic
professionals with brackets, archwires and related products which are used to
straighten patients' teeth. "A" Company sells through direct sales forces in
the United States, Canada, and several major countries in Europe, and through
exclusive and non-exclusive distributors in smaller European countries, Asia,
and the rest of the world.
"A" Company's product line consists of several brands of stainless steel
brackets as well as a clear bracket made of synthetic sapphire, under the brand
names of DAMON SL(R), TRU-ROTH(R), STANDARD TWIN(R), MINI-TWIN(R), ATTRACT(R),
ACTIVA(R) and STARFIRE(R) TMB. "A" Company also markets archwires, elastics,
adhesives and hand-held instruments that are supplied by outside vendors and
sold under private or vendor labels.
"A" Company employs approximately 580 people, none of whom are represented
by labor unions. "A" Company's headquarters, administrative, research, some
manufacturing and assembly, and distribution functions are located in a 76,000
square foot single story owned facility in San Diego, California. "A"
Company's principal manufacturing facility is located in a 32,000 square foot
single story owned facility in Tijuana, Baja California, Mexico. "A" Company's
European operation is headquartered in a leased facility in Amersfoort, The
Netherlands.
HISTORICAL OVERVIEW
"A" Company was founded in 1963 by Dr. Larry F. Andrews (hence the name,
"A" Company), an orthodontist in San Diego, for the purpose of marketing
orthodontic accessories, such as facebows and headgear.
In 1971, after a decade of product development, Dr. Andrews and "A"
Company introduced the STRAIGHT-WIRE(R) appliance technique. This technique
enabled orthodontists to control tooth movement through preprogrammed
adjustments designed directly into brackets; previously orthodontists were
forced to control tooth movement by bending archwires to achieve torque. The
STRAIGHT-WIRE(R) appliance technique has reduced patient chair time and
improved final case outcomes, and today nearly seventy percent of all
orthodontic treatment is based on straight-wire theories and designs.
"A" Company was acquired by Sterndent, Inc., a small dental supplies
company in the late 1970's, and Sterndent was acquired by The Cooper Companies
of Palo Alto, California in December 1981. Johnson & Johnson ("J&J") acquired
"A" Company from The Cooper Companies in early 1982. At that time, "A" Company
fit within a
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portfolio of dental-related J&J subsidiaries. Ten years later, J&J began a
plan of divestiture with respect to its dental holdings and in June 1994 sold
"A" Company to its current owner, LRS, as described above.
PRODUCTS
"A" Company is an innovator of superior, proprietary appliance systems for
use by professional orthodontists. "A" Company manufactures and markets an
extensive line of professional orthodontic appliances, including a wide array
of brackets and buccal tubes. "A" Company also markets archwires, elastics,
adhesive products, facebows, hand instruments and other related products and
services supplied by outside vendors.
"A" Company currently markets several lines of stainless steel appliances
which are based upon the straight-wire theories of design. These products are
marketed under the names ACTIVA(R), ATTRACT(R), DAMON SL(R), MINI-TWIN(R),
STANDARD TWIN(R) and TRU-ROTH(R). "A" Company also markets STARFIRE(R) TMB
brackets which are made of synthetic sapphire and are the only transparent
brackets which do not discolor or stain.
The straight-wire appliance system, widely used in orthodontic treatment
and considered by the orthodontic community to be one of the most significant
innovations in orthodontics, was invented by A Company's founder, Dr. Larry F.
Andrews, and was introduced by "A" Company in 1971.
In straight-wire appliances, preprogrammed adjustments are designed into
the back surface of every bracket allowing tooth movement to be controlled on
three planes; tip, rotation, and torque. The base of each bracket positions
each tooth in its unique and correct position and, because of the built-in
controls, an orthodontist with proper training can easily advance bracket
archwire slots into alignment and avoid the arduous task of bending wire. The
straight-wire design, which is built into every "A" Company bracket, has
reduced patient chair time and enabled orthodontic treatment to be completed
with an improved outcome and more consistent results.
Dr. Andrews' original patents for straight-wire appliances have long-since
expired and today numerous competitors market their own versions of
straight-wire appliances, often in so-called "Andrews Prescriptions".
During the mid 1980's, "A" Company began to focus its product development
efforts on aesthetic advancements, and in 1987 introduced the MINI-TWIN(R)
product line. The MINI-TWIN(R) brackets are aesthetically appealing due to
their smaller size. The MINI-TWIN(R) is the Company's largest selling product
line.
In February 1992, "A" Company introduced a proprietary aesthetic bracket
manufactured from transparent synthetic sapphire. The "A" Company product,
marketed under the name STARFIRE(R) TMB, is clearer and stronger than plastic
and does not discolor or stain. "A" Company is the only manufacturer to use
synthetic sapphire for its aesthetic brackets and retains a patent which
expires in 2003.
In late 1996, "A" Company, together with Dr. Ronald Roth, a well known
orthodontist and lecturer, launched an appliance based on the commonly used
"Roth Prescription". "A" Company's management believes that the Roth
Prescription is the leading prescription used in the United States and is
currently used in over 35% of all orthodontic cases. "A" Company's system
combines the clinical benefits of the full sized STANDARD TWIN(R) bracket with
the aesthetics of the smaller MINI-TWIN(R). The result is an aesthetically
pleasing bracket system that allows for greater efficiency and bonding
strength. A number of "A" Company's competitors offer products based upon the
Roth Prescription.
Also in 1996, "A" Company, together with Dr. Dwight Damon, introduced a
patented "self-ligating" appliance which "A" Company markets under the name
DAMON SL(R). A "self-ligating" appliance requires no rubber or wire ligatures
to hold the archwire into the bracket slot. Instead, a clasp is moved over the
slot with the wire engaged, creating a tube for the wire to slide through. The
DAMON SL(R) wire retention system reduces friction across the entire system of
the archwire and brackets and results in greater patient comfort and faster
tooth movement. Until recently
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there were only two self-ligating brackets on the market: Speed (manufactured
by SPEED System(TM) Orthodontics, Inc.) and "A" Company's ACTIVA(R). Both
products are still used by a handful of orthodontists.
"A" Company outsources most of the peripheral products it sells. In May
1997 "A" Company entered into an exclusive agreement with Hu Friedy, Inc., a
leading dental instrument manufacturer. This agreement provides "A" Company
with exclusive rights to purchase and sell a line of orthodontic instruments
named "Classic Instruments, crafted by Hu Friedy". "A" Company's management
believes this relationship will help "A" Company maintain a premium product
position in the peripheral products market segment.
MARKETING AND DISTRIBUTION
Demand for "A" Company's products depends on the preferences and behavior
of both orthodontists and patients. Accordingly, "A" Company's marketing
strategy has been to focus on reinforcing customer loyalty among orthodontists
while beginning to establish an awareness among patients of "A" Company as the
premier provider of orthodontic appliances.
"A" Company's marketing and distribution is conducted through a direct
sales force and network of exclusive and non-exclusive distributors organized
into three geographic segments: North America ("NAF"), "A" Company Europe
("ACE"), and the Global Enterprise Organization ("GEO") for Latin America, Asia
and the rest of the world.
NAF
NAF comprises the United States and Canada. These markets are covered by a
direct sales force selling to orthodontists and selected general practitioners.
The composition of the NAF direct sales force as of December 31, 1997, is
shown below:
Direct Sales Representatives 30
Regional Managers 4
Customer Service Representatives 13
Sales Administrative Staff 4
---
51
ACE
Prior to 1991, "A" Company products were marketed along with other dental
products in Europe by J&J umbrella companies. ACE was established in 1991 for
the purpose of improving "A" Company's market share in Europe. ACE covers
Europe with a network of 16 direct field representatives and 5 distributors.
ACE has adopted a two-tiered distribution strategy: direct for large
markets and indirect for developing or small markets. The larger markets are
serviced by a direct sales force, managed by ACE. Each developing or smaller
market is covered by a distributor or sales agent specializing in the dental or
orthodontic field. As the ACE business continues to develop and grow,
distributors are replaced by direct sales people. During the past year,
several ACE markets have changed in this fashion.
The composition of the ACE sales force as of December 31, 1997, is shown
below:
Direct Sales Representatives 16
Sales Managers 2
Customer Service Representatives 5
Director of Sales 1
Distributors & Sales Agents 5
---
29
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GEO
GEO was established in 1992 to improve the marketing focus in the emerging
Pacific Rim and Latin America markets and is "A" Company's fastest growing
division. "A" Company engages exclusive and non-exclusive distributors to sell
"A" Company orthodontic appliances throughout the GEO market. "A" Company
currently has distributors in 17 countries. GEO sales coverage as of December
31, 1997, is shown below:
Distributors 7
Independent Sales Representatives 1
Customer Service Representatives 2
Director of Marketing & Sales 1
---
11
MANUFACTURING AND SOURCING
The majority of brackets and buccal tubes sold by "A" Company are
manufactured in "A" Company's Tijuana, Mexico facility. Because
Straight-Wire(R) appliances are designed to move teeth to predetermined
positions, "A" Company's products must meet stringent specifications that are
consistently within 1/2 degree and 0.005 inches. "A" Company has developed a
unique manufacturing process to cast small metal parts to the exacting
tolerances necessary to achieve the appropriate levels of torque, rotation, and
tip in the baseplates of its brackets. Brackets are "A" Company's principal
manufactured product.
The manufacturing process for metal brackets is labor intensive. The
majority of "A" Company's brackets are made using the lost-wax method of
casting; a multi-step manufacturing process which is similar to the process
used for jewelry production. "A" Company has refined this process over the
years to achieve consistently high tolerances in its finished products. "A"
Company uses internally developed CAD/CAM technology for tooling, which
includes the use of molds, dies, and fixtures for production, as well as for
new product designs and modifications. In addition, "A" Company's in-house
mold-making capability helps maintain consistent product quality while lowering
manufacturing expenses.
"A" Company also possesses proprietary technology and know-how for the
manufacturing and machining of synthetic sapphire brackets. "A" Company holds
a patent on synthetic sapphire bracket material and is currently the only
manufacturer marketing the product. "A" Company's patent covers all brackets
made of single crystal sapphire and does not expire until 2003.
"A" Company maintains quality control over its manufacturing process by
continually improving upon manufacturing standards rather than by relying on
inspection of finished goods. The manufacturing facilities of "A" Company and
the other LRS Companies are ISO 9000 registered and have been certified in
accordance with the European Community Medical Devices Directive 93/42/EEC for
"CE" marking of orthodontic appliance systems.
FACILITIES AND EMPLOYEES
"A" Company's corporate headquarters are located in a 76,000 square foot
facility in San Diego, California. This facility was purchased by "A" Company
in 1994 and the facility currently houses administration, research,
distribution and some manufacturing and assembly functions.
"A" Company's principal manufacturing facility is located in a 32,000
square foot facility 30 miles south of San Diego in Tijuana, Baja California,
Mexico. "A" Company holds beneficial ownership of the Tijuana facility
operated by its subsidiary, Maquiladora ACI-MEX S.A. de C.V. ("ACI-MEX"), under
a deed of trust.
ACE is headquartered in a 12,000 square foot, leased facility in
Amersfoort, The Netherlands.
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As of December 1997, "A" Company employed 579 people, none of whom are
represented by labor unions. The following table provides an overview of "A"
Company's staffing at December 31, 1997:
Full-time Employees by Department
As of December 1997
Department NAF ACE ACI-MEX Total
Manufacturing & Operations 85 18 314 417
Quality Assurance 13 -- 12 25
Sales & Marketing 61 23 -- 84
Research & Development 14 -- -- 14
Administration 20 6 13 39
-- - -- --
Total 193 47 339 579
=== == === ===
MARKET OVERVIEW
"A" Company's management believes that the worldwide orthodontic market is
growing at an annual rate of 5%-7%. Growth outside the United States exceeds
the overall growth rate because of increased use of fixed appliances and
changing attitudes about cosmetic appearances, especially in Japan and Europe.
There are approximately 16,000 orthodontists worldwide, with approximately
half residing in the United States. The average treatment time in the United
States is roughly 30 months and the cost per patient is approximately $3,750,
although fees vary on a regional basis. The cost of appliances to the
orthodontist, about $100-$150 per patient, is a small percentage of the fee.
Steel Brackets
Steel brackets currently dominate the domestic orthodontic appliance
market. Companies in this market segment compete based on product quality,
technological innovations, service support and price.
Aesthetic Brackets
Aesthetic brackets are transparent and are made of ceramic, plastic or
composite materials and presently account for a much smaller portion of the
domestic orthodontic bracket market. Aesthetic brackets are generally more
expensive than steel brackets and have traditionally appealed to the adult
segment of appliance wearers as this segment appears to be more concerned with
aesthetics and is less price sensitive. However, the price of aesthetic
brackets has dropped in recent years and the far larger teenage market has
adopted their use, resulting, in part, in an annual growth rate in aesthetic
appliances of approximately 17% since 1994. The long-term growth potential of
aesthetic brackets has stimulated research & development efforts by "A" Company
to develop an aesthetic bracket that matches the quality, reliability and
strength of steel.
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Peripheral Products
Peripheral products include archwires, elastics, adhesives, infection
control products, retainers, casework and lighting systems, and hand
instruments. Because of minimal capital requirements and low barriers to
entry, the peripheral products market has attracted a number of small firms,
resulting in a price competitive market segment. Subcontracting is prevalent in
this segment and, in many cases, competing product offerings are manufactured
by the same suppliers.
LEGAL PROCEEDINGS
The nature of "A" Company's business causes it to be involved in routine
legal proceedings from time to time. "A" Company's management believes that
there are no pending or threatened legal proceedings which, upon resolution,
would be likely to have a material adverse effect on the financial condition or
results of operations of "A" Company.
MARKET INFORMATION AND DIVIDENDS
Shareholders
One hundred percent of the capital stock of "A" Company is owned by LRS.
There has at no time been a public market for the shares of capital stock of
"A" Company or LRS. As of the date of this Proxy Statement/Prospectus there
are (i) 7,755 issued and outstanding shares of LRS Common Stock held by 23
holders of record, (ii) 4,110.68 issued and outstanding shares of LRS Series A
Preferred Stock, all of which are held by the SBA, and (iii) 5,192.65 issued
and outstanding shares of LRS Series B Preferred Stock held by 6 holders of
record; as well as the LRS Warrant which represents the right to acquire 2,000
shares of LRS Common Stock and the LRS Options which represent the right to
acquire a total of 437 shares of LRS Common Stock.
Dividends
LRS declared and paid cash dividends on its Series A Preferred Stock of
$253,000 in 1995, $334,000 in 1996, and $331,000 in 1997. There were no
dividends paid on the LRS Series B Preferred Stock; dividends accrued were
$449,000 in 1995, $484,000 in 1996, and $546,000 in 1997. LRS has never
declared dividends on the LRS Common Stock and is restricted from doing so.
See Note 5 of the Notes to the LRS Consolidated Financial Statements herein.
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PRINCIPAL STOCKHOLDERS AND SECURITY OWNERSHIP OF MANAGEMENT OF LRS
LRS owns beneficially and of record 100% of the capital stock of "A"
Company. Set forth below are the names (and addresses in the case of persons
whose business address is not that of LRS) of, and the number of shares and the
percentage of outstanding shares beneficially owned as of the Record Date for
the Special Meeting by (i) each holder who owns of record, or is known by
management to be the beneficial owner of, more than five percent of the
outstanding shares of any class of capital stock of LRS, (ii) each director and
executive officer of LRS, and (iii) all directors and executive officers of LRS
as a group. Each stockholder named below has sole voting power and investment
power with respect to the shares shown in the table unless otherwise indicated.
WARRANTS OR
LRS OPTIONS TO % OF FULLY SERIES A SERIES B
NAME AND ADDRESS OF COMMON PURCHASE LRS DILUTED PREFERRED PREFERRED % OF
BENEFICIAL OWNER STOCK COMMON STOCK COMMON STOCK STOCK(5) % OF CLASS STOCK(5) CLASS
- --------------------------------------- ----------- ------------ ------------ --------- ---------- --------- -------
Liberty Partners
Holdings 5, L.L.C.(1)
c/o Liberty Partners
1177 Avenue of the Americas
New York, NY 10036 1868.03 2,000 38.0%
State Board of
Administration of Florida(2)
c/o Liberty Partners
1177 Avenue of the Americas
New York, NY 10036 4,110.68 100%
Kenneth Rainin
c/o Rainin Instruments, Inc.
5400 Hollis Street
Emeryville, CA 94608 3,150.92 30.9 4,627.41 89.1
Robert Stockman
c/o Johnston Associates
181 Cherry Valley Road
Princeton, NJ 08540 1,050 10.3
Robert Johnston(3)
c/o Johnston Associates
181 Cherry Valley Road
Princeton, NJ 08540 350 3.4
William W. Crouse 303.94 3.0 309.62 6.0
Gordon Nye 300 2.9
Andrew Futey 75 25 1.0
David Milner 75 0.7
Charles Madsen 25 50 0.7
Michael Oliver 50 0.5
Richard Poinsett 25 0.2
__________ ________ ________ ________ ________ ________ _______
All Directors and
Executive Officers as
a Group(4) 7122.89(4) 2,225 91.8% 4,110.68 100% 4,937.03 95.1%
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(1) Liberty Investment Partners 5 holds a 23.5% profits interest in Liberty
Partners Holdings 5, L.L.C., and, accordingly, holds a 23.5% beneficial
ownership interest in the LRS securities held of record by Liberty
Partners Holdings 5, L.L.C. Liberty has the right to designate two
members to the LRS Board pursuant to the LRS Stockholders Agreement. See
"Summary--The Parties to the Reorganization-Liberty"; "Comparison of
Shareholder Rights--Comparison of Sybron Articles and Bylaws to LRS
Certificate and Bylaws--Board of Directors"; and note (2) below.
(2) The State Board of Administration of Florida, through its wholly owned
subsidiary Liberty Investments 5, Inc., holds a 76.5% profits interest in
Liberty Partners Holdings 5, L.L.C., and, accordingly, holds a 76.5%
beneficial ownership interest in the LRS securities held of record by
Liberty Partners Holdings 5, L.L.C.
(3) Pursuant to the LRS Stockholders Agreement, Robert Johnston and Robert
Stockman jointly have the right to designate one director to the LRS
Board; Robert Stockman is currently the joint Stockman, Johnston designee.
See "Comparison of Shareholder Rights--Comparison of Sybron Articles and
Bylaws to LRS Certificate and Bylaws--Board of Directors."
(4) Includes (i) the State Board of Administration of Florida as the
beneficial owner of LRS securities held by Liberty and (ii) Robert
Johnston, as Mr. Johnston together with Mr. Stockman have the authority to
designate one director to the LRS Board.
(5) Except as otherwise provided in the LRS Certificate of Incorporation, the
LRS Stock and Warrant Purchase Agreement and as otherwise required by law,
the LRS Preferred Stock has no voting rights.
DIRECTORS AND EXECUTIVE OFFICERS
LRS and "A" Company have the same management. The following table sets
forth information as of the Record Date for the Special Meeting concerning the
directors and the executive officers of LRS and "A" Company.
NAME AGE POSITION
------------------- --- --------------------------------------
William W. Crouse 55 Chairman of the Board
Peter E. Bennett 56 Director
Michael J. Kluger 41 Director
Gordon E. Nye 43 Director, President and CEO
Kenneth Rainin 59 Director
Robert B. Stockman 44 Director
Andrew J. Futey 54 Senior Vice President-Operations
Charles Madsen 44 Vice President-North American Sales
David J. Milner 34 Vice President-Finance
Michael P. Oliver 49 Vice President-Global Marketing
Richard W. Poinsett 47 Vice President-Quality Assurance and
Research & Development
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William W. Crouse has been Chairman of the Board of LRS Acquisition Corp.
since 1994 and is Managing Director of HealthCare Ventures. Mr. Crouse was
Worldwide President of Ortho Diagnostic Systems and Vice-President of Johnson &
Johnson International from 1987 to 1993. In addition to serving as Chairman of
the Board of LRS Acquisition Corp., Mr. Crouse currently serves on the Board of
Directors of Raritan Bancorp, Inc., Allelix Biopharmaceuticals, Bio Transplant,
Inc. and formerly served as a Board member of Human Genome Sciences, Inc. Mr.
Crouse received a B.S. in Finance and Economics from Lehigh University and an
MBA with Distinction in Marketing Management from Pace University.
Peter E. Bennett is President of Liberty Capital Partners, Inc. Prior to
joining Liberty, Mr. Bennett spent 21 years with Merrill Lynch & Co. in several
capacities including head of its private financing activities, Managing
Director of Merrill Lynch Capital Markets and Senior Vice President of Merrill
Lynch Interfunding, Inc. While at Interfunding, Mr. Bennett was directly
involved in 30 acquisitions, and the sale of 14 portfolio companies. Mr.
Bennett currently serves on the Board of Directors of Aldila, Inc. Mr. Bennett
received a B.S. degree from Lehigh University and MBA from Columbia University.
Michael J. Kluger is Managing Director of Liberty Capital Partners, Inc.
Mr. Kluger came to Liberty Partners after 12 years at Merrill Lynch & Co.
While at Merrill Lynch he held several positions in the firm's investment
banking group and for the last five years was Director of Merrill Lynch Capital
Markets and Senior Vice President of Merrill Lynch Interfunding, Inc. At
Merrill Lynch Interfunding, Mr. Kluger worked on numerous transactions
including management buyouts, expansion financings and recapitalizations. Mr.
Kluger currently serves on the Board of Directors of Monaco Coach Corporation.
Mr. Kluger received a B.A. from Trinity College and an MBA from the University
of Chicago.
Gordon E. Nye has been Chief Executive Officer and President of LRS
Acquisition Corp. since April, 1996. Prior to joining LRS Acquisition Corp.,
Mr. Nye was Chief Operating Officer and President of Voit Sports, Inc. and
served in senior marketing and sales positions in L.A. Gear, Reebok, Olin Ski
Company and Gillette. Mr. Nye is a magna cum laude graduate of Dartmouth
College and received an MBA from the Amos Tuck School at Dartmouth.
Kenneth Rainin Kenneth Rainin is Chief Executive Officer of Rainin
Instrument Co., a manufacturer and distributor of scientific instruments used
in research laboratories, a company which he founded in 1963. In addition, Mr.
Rainin is presently the Chairman of the Board of Directors of Protein
Technologies, Inc. and Budd Foods, and the President of Analtech, Inc. Over
the past 25 years, Mr. Rainin founded, served in various management positions
and sold three scientific instrument companies: Anachem, Ltd., Loptex, Inc. and
Altex Scientific, Inc. Mr. Rainin received a B.A. from Ohio State University.
Robert B. Stockman is Vice President of Johnston Associates, Inc. Before
joining Johnston Associates, Inc., Mr. Stockman was an investment analyst with
Narragansett Capital Corporation in Providence, Rhode Island, where he was
involved in leveraged buyouts and venture capital investments in the healthcare
field. Mr. Stockman's prior experience was in public accounting with Price
Waterhouse. Mr. Stockman received a B.A. from Harvard College and an MBA from
the Amos Tuck School at Dartmouth.
Andrew J. Futey has been Senior Vice President of Operations of LRS
Acquisition Corp. since 1995. Mr. Futey served in senior manufacturing and
engineering management positions in "A" Company's San Diego and Tijuana
facilities from 1983 to 1995. Previously, Mr. Futey held senior level
management positions in Johnson & Johnson companies in the United States and
Puerto Rico. Mr. Futey received a B.A. from Rutgers and served in the United
Sates Air Force as a Pilot and Logistics Plans Officer.
Charles Madsen is Vice President of North American Sales and first joined
LRS Acquisition Corp. as Director of Practice Development in 1995. Mr. Madsen
has previously held executive and sales management positions with
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IOPTEX Research, Inc., Colonial Hospital Supply, Inc., and Colonade Health
Corporation. Mr. Madsen received a degree in Criminology with a minor in
Business Administration from Lewis University.
David J. Milner is Vice President and Chief Financial Officer and joined
LRS Acquisition Corp. in 1996. Mr. Milner has previously held executive
financial positions with Voit Sports, Inc. and BioSafety Systems, Inc. Mr.
Milner has prior experience in public accounting with Ernst & Young LLP. Mr.
Milner received a B.S. from Indiana University and is a Certified Public
Accountant.
Michael P. Oliver has been Vice President of Global Marketing of LRS
Acquisition Corp. since 1997. Previously, Mr. Oliver held senior management
and executive sales and marketing positions with New Image Industries, Inc.,
Diatek, Inc., Prescription Health Services, Hybritech, Inc., U.S. Surgical
Corp., and American Hospital Supply. Mr. Oliver received a B.S. from the
United States Naval Academy and received an MSA from George Washington
University.
Richard W. Poinsett is Vice President of Quality Assurance and Research &
Development and joined LRS Acquisition Corp. in 1996. Previously, Mr. Poinsett
held senior management positions in quality assurance with Pilkington Barnes
Hind, Siemens Pacesetter, ITT Gilfillan and Bendix Oceanics Division. Mr.
Poinsett received a B.S. EET from Purdue and an MBA from Pepperdine.
INTERESTS OF MANAGEMENT AND CERTAIN OTHER TRANSACTIONS
See "The Merger--Interests of Certain Persons in the Merger."
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF LRS'
FINANCIAL CONDITION AND RESULTS OF OEPRATIONS
The following analysis and discussion of LRS' financial condition and
results of operations should be read in conjunction with LRS' consolidated
financial statements and notes thereto included elsewhere in this Proxy
Statement/Prospectus.
OVERVIEW
LRS through its wholly owned subsidiaries, designs, manufactures, markets
and distributes orthodontic appliances and products. LRS is a holding company
whose principal subsidiary is "A" Company. LRS was incorporated on May 16, 1994
for the purpose of acquiring from Johnson & Johnson, in a highly leveraged
transaction, the orthodontic appliance business conducted under the name of "A"
Company. The acquisition was completed effective June 16, 1994. Prior to June
16, 1994, the activities of LRS consisted of organization and formation related
transactions. Operations commenced upon completing the acquisition.
"A" Company is a developer, manufacturer and provider of orthodontic
products. "A" Company concentrates on the fixed appliance treatment segment of
the orthodontic market (commonly known as "braces") and supplies orthodontic
professionals with brackets, archwires and related products which are used to
straighten patients' teeth.
"A" Company's marketing and distribution is conducted through a direct
sales force and a network of exclusive and non-exclusive distributors organized
into three geographic segments: North America ("NAF"), "A" Company Europe
("ACE"), and "A" Company's San Diego-based international division ("GEO") which
manages independent distributors in 17 countries focusing on Latin America,
Asia and the rest of the world.
To control costs, the majority of products sold by "A" Company are
manufactured in "A" Company's Tijuana, Mexico facility.
RESULTS OF OPERATIONS
The following table presents certain selected Statement of Operations data
expressed as a percentage of net sales for the periods indicated.
YEARS ENDED DECEMBER 31,
----------------------------
1995 1996 1997
------- ------- -------
Net sales 100.0% 100.0% 100.0%
Cost of sales 43.0% 41.0% 39.5%
------- ------- -------
Gross profit 57.0% 59.0% 60.5%
Operating expenses 42.2% 45.2% 42.1%
------- ------- -------
Operating profit 14.8% 13.8% 18.4%
Interest expense, net 11.7% 9.9% 9.2%
------- ------- -------
Income before taxes 3.1% 3.9% 9.2%
Provision for income taxes 1.0% 1.1% 3.6%
------- ------- -------
Net income 2.1% 2.8% 5.6%
======= ====== ======
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YEAR ENDED DECEMBER 31, 1997
COMPARED TO THE YEAR ENDED DECEMBER 31, 1996
NET SALES. Net sales of $45.3 million during fiscal 1997 represented an
increase of 4.1% over the net sales of $43.5 million in the preceding year.
Sales increases in the NAF and GEO sales divisions of $1.9 million and $0.7
million, respectively, were offset by a sales decrease of $0.8 million at ACE.
Unfavorable foreign currency effects resulted in the 7.6% decline in ACE sales
from the prior year. NAF and GEO sales, primarily in U.S. dollars, were not
significantly influenced by foreign currency effects and realized increases of
6.4% and 25.8%, respectively, over the preceding year. The sales increases were
the result of new products (approximately $1.8 million) and a heightened focus
on international distributors (approximately $0.7 million).
For the year ended December 31, 1997 net sales of NAF, ACE and GEO
accounted for 69.3%, 22.9% and 7.8% of total net sales, respectively.
GROSS PROFIT. Gross profit for fiscal 1997 was $27.4 million, an increase
of 6.7% over the gross profit of $25.7 million reported during the preceding
year. The increase in gross profit is primarily attributable to increased
volume. Cost of sales, as a percentage of net sales, were 39.5% during fiscal
1997, compared to 41.0% recorded in the prior year.
OPERATING EXPENSES. During the year ended December 31, 1997, operating
expenses were $19.1 million or 42.1% of net sales, compared to $19.6 million or
45.2% of net sales in the prior year.
Lower spending in 1997, in comparison to 1996, was attributable to across
the board spending cuts implemented by a new management team and was the result
of certain "one-time" charges incurred during 1996, which included severance
relating to a staff reduction and certain management changes (approximately
$0.5 million), relocation of "A" Company's European headquarters (approximately
$0.1 million), recruiting charges associated with hiring a new management team
(approximately $0.1 million), and a legal review of "A" Company's world-wide
trademark and patent portfolio (approximately $0.1 million).
OPERATING INCOME. As the result of the foregoing, operating income was
$8.3 million (18.4% of net sales) for the year ended December 31, 1997, as
compared to $6.0 million (13.8% of net sales) for the prior year.
INTEREST EXPENSE. Interest Expense was $4.2 million for fiscal 1997, a
decrease of $158,000. The decrease resulted from a lower average debt balance
in 1997, offset slightly by a higher cost of funds on the Company's
subordinated debt.
INCOME TAXES. Taxes on income for the year ended December 31, 1997 were
$1.6 million, an increase of $1.1 million over the preceding year. The increase
was primarily the result of increased taxable earnings in 1997 and benefits
received from lower foreign tax rate jurisdictions in 1996.
NET INCOME. As a result of the foregoing, net income was $2.6 million
for the year ended December 31, 1997, as compared to net income of $1.2 million
for the preceding year.
YEAR ENDED DECEMBER 31, 1996
COMPARED TO THE YEAR ENDED DECEMBER 31, 1995
NET SALES. Net sales of $43.5 million for the year ended December 31,
1996 represented an increase of 4.4% over the net sales of $41.7 million in the
preceding year. All three sales divisions -- NAF, GEO and ACE -- achieved
higher sales compared with the preceding year, with GEO realizing the largest
sales increase with growth of 6.7%.
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The sales increase in each division was primarily attributable to launching two
new appliances, the DAMON SL(R) and TRU-ROTH(R), in addition to continued
product line extensions of "A" Company's existing product offering.
For the twelve months ended December 31, 1996, net sales of NAF, ACE and
GEO accounted for 67.8%, 25.8% and 6.4% of total net sales, respectively.
GROSS PROFIT. Gross profit for fiscal 1996 was $25.7 million, an increase
of 8.1% over the gross profit of $23.8 million reported during the same period
in the preceding year. The increase in gross profit was attributable to
increased volume and cost reductions achieved by moving certain domestic-based
manufacturing processes to the Company's manufacturing facility in Mexico. Cost
of sales, as a percentage of net sales, were 41.0% during fiscal 1996, compared
to 43.0% recorded in the prior year.
OPERATING EXPENSES. Operating expenses for fiscal 1996 were $19.6 million
or 45.2% of net sales, compared to $17.6 million or 42.2% of sales in the
corresponding period of the prior year.
Higher spending in fiscal 1996 was primarily the result of marketing costs
relating to launching two new appliance product lines (approximately $0.2
million), marketing costs connected with a promotion to reduce the year-end
sales seasonality (approximately $0.2 million), and certain "one-time" charges
including severance related to the staff reduction and certain management
changes (approximately $0.5 million), relocation of "A" Company's European
headquarters (approximately $0.1 million), recruiting charges associated with
hiring a new management team (approximately $0.1 million), and a legal review
of "A" Company's world-wide trademark and patent portfolio (approximately $0.1
million).
OPERATING INCOME. As the result of the foregoing, operating income was
$6.0 million (13.8% of net sales) for fiscal 1996, as compared to $6.2 million
(14.8% of net sales) for fiscal 1995.
INTEREST EXPENSE. Interest Expense was $4.3 million for fiscal 1996, a
decrease of approximately $0.6 million. The decrease resulted from a lower
average debt balance in 1996.
INCOME TAXES. Taxes on income for the twelve months ended December 31,
1996 were approximately $0.5 million, a slight increase over the preceding
year. The increase was primarily the result of increased taxable earnings.
NET INCOME. As a result of the foregoing, net income was $1.2 million
for fiscal 1996, as compared to net income of approximately $0.9 million for
the preceding year.
LIQUIDITY AND CAPITAL RESOURCES
Effective June 16, 1994, the Company was acquired from Johnson & Johnson
in a highly leveraged transaction. Equity of $11.2 million was provided
primarily by certain individual investors and the State Board of Administration
of Florida (the "SBA") in exchange for common and redeemable preferred shares.
The SBA also provided $41 million in debt financing for the acquisition that is
secured by substantially all of "A" Company's assets. In addition, the SBA
established a $2 million revolving credit facility. The terms of "A" Company's
loan agreements contain certain restrictive financial and other covenants,
including minimum tangible net worth, interest coverage ratio, limitations on
lease commitments, capital expenditures, and indebtedness as well as
distributions to shareholders. At December 31, 1997, "A" Company was not in
compliance with certain of the covenants but was able to obtain a waiver from
the respective lender. That waiver, which was granted in 1998, extends through
January 1, 1999. "A" Company does not anticipate satisfying the covenants in
1999; however, as disclosed in Note 11 to the LRS Acquisition Corp. Notes to
Consolidated Financial Statements, the loan payable to stockholder of
approximately $31 million, not in compliance at December 31, 1997, will be
repaid.
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In November 1994, "A" Company purchased land and a building in San Diego,
California for $3.7 million, which was occupied in March 1995 and is currently
being used as "A" Company's headquarters. "A" Company paid approximately 25%
of the purchase price in cash and borrowed the balance from its principal bank
at the bank's reference rate plus 1%. The note is secured by a deed of trust.
Substantially all of "A" Company's working capital needs since June 16,
1994 have been funded through internally generated cash flow. During 1997, net
cash provided by operating activities totaled $3.9 million compared to $5.1
million in 1996. The decrease in 1997 is primarily due to the increased
inventory levels used to build future sales. During 1997, net cash used in
investing activities totaled $1.3 million compared to $1.6 million in 1996.
The decrease in 1997 is primarily due to lower capital expenditures. During
1997, net cash used in financing activities totaled $3.1 million compared to
$4.0 million in 1996. The decrease in 1997 is primarily due to lower
repayments of long-term debt in accordance with its terms and $0.5 million of
additional borrowings on the line of credit. "A" Company believes that cash
flow from operations, together with the cash available from it's revolving
credit facility with the SBA, will be sufficient to fund its activities.
IMPACT OF YEAR 2000
The Year 2000 issue is the result of computer programs being written using
two digits rather than four to define the applicable year. Any of "A" Company's
computer programs that have time-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions, send invoices, or
engage in similar normal business activities.
"A" Company recently spent approximately $1 million to purchase and
install a new primary operating system. As a result of this recent
implementation, "A" Company believes that the Year 2000 issue will not pose
significant operational problems for its computer systems.
IMPACT OF INFLATION
"A" Company does not believe that inflation has had any material impact
upon its business or operations. There can be no assurance, however, that "A"
Company will not be affected by inflation in the future.
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DESCRIPTION OF SYBRON CAPITAL STOCK
At March 9, 1998 , the authorized capital stock of Sybron consisted of
250,000,000 shares of Common Stock, $0.01 par value per share, of which
97,319,910 shares were outstanding, and 20,000,000 shares of Preferred Stock,
$0.01 par value per share ("Sybron Preferred Stock"), of which none were
outstanding. The following summary does not purport to be a complete
description of the applicable provisions of Sybron's Restated Articles of
Incorporation (the "Sybron Articles") and Bylaws (the "Sybron Bylaws") or of
applicable statutory or other law, and is qualified in its entirety by
reference thereto. See "Available Information."
PREFERRED STOCK
Under the Sybron Articles, the Sybron Preferred Stock may be issued from
time to time in one or more series with distinctive serial designations and may
have such voting powers, redemption rights, dividend rights, rights upon
dissolution or distribution of assets, conversion or exchange rights,
designations, preferences and relative participating, optional or other special
rights, if any, and such qualifications, limitations and restrictions thereof
as shall be provided by resolution of the Board of Directors. There are no
present plans to issue any Sybron Preferred Stock.
COMMON STOCK
Subject to the prior rights and preferences of any issued and outstanding
shares of Sybron Preferred Stock, holders of Sybron Common Stock (i) have equal
and ratable rights to dividends from funds legally available therefor when, as
and if declared by the Board of Directors and (ii) are entitled to share
ratably in any distributions to holders of Common Stock upon liquidation of the
Company. When the Company has received the consideration for which the Board
of Directors authorized the issuance of shares, the shares issued for that
consideration are fully paid and nonassessable. Shareholders are subject to
personal liability under Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law ("WBCL"), as judicially interpreted, for debts owing to
employees of the Company for services performed, but not exceeding six months'
service in any one case. Shareholders of the Company do not have preemptive
rights. The Common Stock is not redeemable or convertible, there is no
provision for a sinking fund with respect to the Common Stock, and each holder
is entitled to one vote per share on all matters presented to shareholders,
except to the extent that the voting power of shares held by any person in
excess of 20% of the voting power in the election of directors may be limited
under Section 180.1150 of the WBCL as described below. The affirmative vote of
the holders of at least two-thirds (2/3) of the votes entitled to be cast
thereon is required to amend, alter or repeal certain provisions of Sybron's
Articles and to adopt, alter, amend or repeal Sybron's Bylaws. Except as may
otherwise be provided by law, the required vote for shareholder approval of
other actions is a majority of the votes cast on the matter.
Sybron's Articles and Bylaws provide that the directors of the Company
shall be divided into three classes. Each class is elected for a three-year
term, with the term of one class expiring each year. Pursuant to Section
180.0728 of the WBCL, directors are elected by a plurality of the votes cast by
the holders of shares entitled to vote in the election at a meeting at which a
quorum is present. The Sybron Articles do not provide for cumulative voting.
Sybron's Articles and Bylaws provide that directors may be removed by the
shareholders only for cause and that any vacancy on the Board shall be filled
only by the directors then in office (unless no director remains in office).
Covenants contained in the Company's debt agreements from time to time may
restrict the Company's ability to pay dividends.
The Sybron Common Stock is listed on the NYSE. The transfer agent and
registrar for the Sybron Common Stock is BankBoston, N.A.
CERTAIN STATUTORY PROVISIONS
Under Section 180.1150 of the WBCL, unless otherwise provided in the
articles of incorporation, the voting power of shares of a "resident domestic
corporation" which are held by any person in excess of 20% of the voting power
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in the election of directors shall be limited (in voting on any matter) to
10% of the full voting power of such excess shares, unless full voting rights
have been restored at a special meeting of the shareholders called for that
purpose. Shares held or acquired under certain circumstances are excluded from
the application of Section 180.1150, including (among others) shares acquired
directly from the resident domestic corporation and shares acquired in a merger
or share exchange to which the resident domestic corporation is a party.
Sections 180.1130 to 180.1133 of the WBCL provide generally that, in
addition to the vote otherwise required by law or the articles of incorporation
of a resident domestic corporation, certain business combinations not meeting
certain fair price standards specified in the statute must be approved by the
affirmative vote of at least (a) 80% of the votes entitled to be cast by the
outstanding voting shares of the corporation and (b) two-thirds (2/3) of the
votes entitled to be cast by the holders of voting shares other than voting
shares beneficially owned by a "significant shareholder" or an affiliate or
associate thereof who is a party to the transaction. The term "business
combination" is defined to include, subject to certain exceptions, a merger or
share exchange of the resident domestic corporation (or any subsidiary thereof)
with, or the sale or other disposition of substantially all of the property and
assets of the resident domestic corporation to, any significant shareholder or
affiliate thereof. "Significant shareholder" is defined generally to mean a
person that is the beneficial owner of 10% or more of the voting power of the
outstanding voting shares of the resident domestic corporation.
Sections 180.1140 to 180.1144 of the WBCL prohibit certain "business
combinations" between a "resident domestic corporation" and a person
beneficially owning 10% or more of the voting power of the outstanding voting
stock of such corporation (an "interested stockholder") within three years
after the date such person became a 10% beneficial owner, unless the business
combination or the acquisition of such stock was approved before the stock
acquisition date by the corporation's board of directors. After such
three-year period, a business combination with the interested stockholder may
be consummated only with the approval of the holders of a majority of the
voting stock not beneficially owned by the interested stockholder at a meeting
called for that purpose, unless the business combination satisfies certain
adequacy-of-price standards intended to provide a fair price for shares held by
disinterested shareholders.
Section 180.1134 of the WBCL provides that, in addition to the vote
otherwise required by law or the articles of incorporation of a resident
domestic corporation, the approval of the holders of a majority of the shares
entitled to vote is required before such corporation can take certain action
while a takeover offer is being made or after a takeover offer has been
publicly announced and before it is concluded. Under this statute, shareholder
approval is required for the corporation to (i) acquire more than 5% of the
outstanding voting shares at a price above the market price from any individual
or organization that owns more than 3% of the outstanding voting shares and has
held such shares for less than two years, unless a similar offer is made to
acquire all voting shares, or (ii) sell or option assets of the corporation
which amount to at least 10% of the market value of the corporation, unless the
corporation has at least three independent directors (directors who are not
officers or employees) and a majority of the independent directors vote not to
have this provision apply to the corporation.
The Company is a "resident domestic corporation" for purposes of the
above-described provisions. These provisions of the WBCL, along with the
ability to issue Preferred Stock in series with such preferences, limitations
and relative rights as are determined by the Board of Directors and the ability
to issue additional shares of Common Stock without further shareholder approval
(except as required under NYSE corporate responsibility standards), and certain
provisions of the Sybron Articles and Bylaws could have the effect, among
others, of discouraging take-over proposals for the Company, delaying or
preventing a change in control of the Company, impeding a business combination
between the Company and a major shareholder of the Company, or entrenching
current management.
The foregoing summary does not purport to be a complete description of the
applicable provisions of the Articles or Bylaws, or of applicable statutory or
other law, and is qualified in its entirety by reference thereto.
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COMPARISON OF SHAREHOLDER RIGHTS
Sybron is incorporated in the State of Wisconsin while LRS is incorporated
in the State of Delaware. Stockholders of LRS, whose rights are currently
governed by Delaware law and the LRS Certificate of Incorporation and Bylaws
will, upon consummation of the Merger, become shareholders of Sybron and their
rights will be governed by Wisconsin law and the Sybron Articles and Bylaws.
The Sybron Articles and the Bylaws are different in certain respects from
the LRS Certificate of Incorporation and the LRS Bylaws. In addition, certain
differences exist between the WBCL and the DGCL with respect to shareholders'
rights. While it is impracticable to compare all these differences, certain
similarities and differences between the Sybron Articles and the Sybron Bylaws,
on the one hand, and the LRS Certificate of Incorporation and the LRS Bylaws,
on the other hand, are summarized below under "--Comparison of Sybron Articles
and Bylaws to LRS Certificate and Bylaws," and certain similarities and
differences between the WBCL and the DGCL with respect to shareholders' rights
are summarized below under "--Comparison of Delaware and Wisconsin Law."
The following discussion is not intended to be complete and is qualified
in its entirety by reference to the Sybron Articles and the Sybron Bylaws,
which are filed as exhibits to Sybron's SEC filings (see "Available
Information" and "Incorporation of Certain Documents by Reference"), the LRS
Certificate of Incorporation and the LRS Bylaws, and the WBCL and the DGCL.
COMPARISON OF SYBRON ARTICLES AND BYLAWS TO LRS CERTIFICATE AND BYLAWS
Authorized Capital Stock
The Sybron Articles authorize the issuance of 250,000,000 shares of Sybron
Common Stock having a par value of $0.01 per share, of which 97,319,910 shares
were issued and outstanding as of the Record Date, and the issuance of
20,000,000 shares of Sybron Preferred Stock having a par value of $0.01 per
share, of which no shares were issued and outstanding as of the Record Date.
The Sybron Board is authorized to divide the Sybron Preferred Stock into
series, to issue shares of any such series and to fix and determine the
relative rights and preferences of the shares of any series so established.
See "Description of Sybron Capital Stock."
The LRS Certificate authorizes the issuance of 12,000 shares of LRS Common
Stock having a par value of $.01 per share, of which 7,755 were issued and
outstanding as of the Record Date, the issuance of 5,000 shares of LRS Series A
Preferred Stock having a par value of $1.00 per share, of which 4,110.68 shares
were issued and outstanding as of the Record Date, and the issuance of 7,000
shares of LRS Series B Preferred Stock having a par value of $1.00 per share,
of which 5,192.65 shares were issued and outstanding as of the Record Date.
Voting/No Cumulative Voting
The Sybron Articles and the LRS Certificate each provide that each
outstanding share of the respective Common Stock is entitled to one vote on
each matter submitted to a vote of shareholders, except as otherwise provided
by applicable law. The LRS Preferred Stock has no voting rights, except as
otherwise provided in the LRS Certificate and as otherwise required by law, but
each holder of LRS Preferred Stock is entitled to notice of all stockholders'
meetings. The voting rights of Sybron Preferred Stock, if any were to be
issued, would be determined by the Sybron Board at the time such Preferred
Stock is issued. Neither the Sybron Articles nor the LRS Certificate provide
for cumulative voting in the election of directors.
Dividends; Liquidation
Subject to the prior rights and preferences of any issued and outstanding
shares of Sybron Preferred Stock, such dividends (payable in cash, stock or
otherwise) as may be determined by the Sybron Board may be declared and paid on
the Sybron Common Stock from time to time out of any funds legally available
therefor. After payment shall have
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been made in full to the holders of Sybron Preferred Stock in the event of any
liquidation, dissolution or winding up of the affairs of Sybron, the remaining
assets and funds of Sybron shall be distributed among the holders of Sybron
Common Stock according to their respective shares.
Subject to the preferential rights of the holders of LRS Preferred Stock
and to the extent permitted under the DGCL, dividends may be paid on the LRS
Common Stock as and when declared by the LRS Board. Subject to the
preferential rights of the holders of LRS Preferred Stock, the holders of LRS
Common Stock are entitled to participate ratably on a per share basis in all
distributions to the holders of capital stock in any liquidation, dissolution
or winding up of LRS.
When and as declared by the LRS Board, and to the extent permitted under
the DGCL, LRS shall pay preferential dividends to the holders of LRS Preferred
Stock. Except as otherwise provided by the LRS Certificate, dividends on each
share of LRS Preferred Stock shall accrue on a daily basis at the rate of 8%
per annum of the sum of the "Liquidation Value" thereof (defined in the LRS
Certificate as $1,000 per share) plus all accumulated and unpaid dividends
thereon. Such dividends accrue whether or not they have been declared and
whether or not there are any profits, surplus or other funds of LRS legally
available for the payment of dividends. Such dividends are cumulative such
that all accrued and unpaid dividends must be fully paid or declared with funds
irrevocably set apart for payment before any dividend, distribution or payment
may be made with respect to any LRS Common Stock. If LRS, at any time, pays
less than the total amount of dividends then accrued with respect to the LRS
Preferred Stock, such payment shall be distributed ratably among the holders of
the LRS Preferred Stock based upon the aggregate accrued but unpaid dividends
on the shares of LRS Preferred Stock held by each such holder.
Upon any liquidation, dissolution or winding up of LRS, each holder of LRS
Preferred Stock is entitled to be paid, before any distribution or payment is
made upon LRS Common Stock, an amount in cash equal to the aggregate
Liquidation Value (plus all accrued and unpaid dividends) of all shares of LRS
Preferred Stock held by such holder.
Redemptions
The LRS Certificate provides for mandatory redemption of the outstanding
shares of LRS Preferred Stock in specified increments commencing in 2000 and
ending in 2002 at a price per share equal to the Liquidation Value thereof
(plus all accrued and unpaid dividends thereon). At its option, LRS may at any
time redeem all or any portion of the LRS Preferred Stock then outstanding at a
redemption price calculated in the same manner. Any shares of LRS Preferred
Stock which are redeemed or otherwise acquired by LRS shall be canceled and
shall not be reissued, sold or transferred. The LRS Certificate also provides
for special redemptions, at a redemption price calculated as described above,
upon the demand of the holder or holders of a majority of the Preferred Stock
then outstanding in the event of a "Change in Ownership" or a "Fundamental
Change," as defined in the LRS Certificate. The Merger would constitute a
"Fundamental Change" as so defined. It is a condition to the obligation of
Sybron to consummate the Merger that the holders of the LRS Preferred Stock
shall not have exercised their right under the LRS Certificate to require LRS
to redeem their Preferred Stock.
The redemption rights of Sybron Preferred Stock, if any were to be issued,
would be determined by the Sybron Board at the time such Preferred Stock is
issued.
Neither the Sybron Articles nor the LRS Certificate provides for the
redemption of the respective Common Stock. However, the LRS Certificate
provides that so long as any LRS Preferred Stock remains outstanding, LRS may
not redeem, purchase or otherwise acquire any LRS Common Stock, nor pay or
declare any dividend or make any distribution upon LRS Common Stock except for
dividends payable in shares of LRS Common Stock, provided that LRS may purchase
shares of LRS Common Stock from present or former employees of LRS and its
subsidiaries with the consent of at least 70% of the members of the LRS Board.
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Rights of LRS Preferred Stock Upon Events of Noncompliance
The LRS Certificate provides certain rights to the holders of LRS
Preferred Stock if an Event of Noncompliance has occurred and is continuing,
including an immediate two percent increase in the dividend rate on the
Preferred Stock and a right for the holders of at least 75% of the Preferred
Stock then outstanding to demand immediate redemption of all or any of their
LRS Preferred Stock at a price per share equal to the Liquidation Value thereof
plus all accrued and unpaid dividends thereon. "Events of Noncompliance" are
defined to include, among other things, the failure to pay on any quarterly
Dividend Reference Date (the last day of each calendar quarter) the full amount
of accrued and unpaid dividends on the LRS Preferred Stock, whether or not such
payment is legally permissible or is prohibited by any agreement to which LRS
is subject, and (subject to certain grace period and materiality exceptions)
the breach by LRS or failure to perform or observe any other covenant or
agreement set forth in the LRS Certificate or in the Amended and Restated Stock
and Warrant Purchase Agreement, dated as of June 13, 1994, by and among LRS and
certain investors, as amended, if the holders of at least 75% of the Preferred
Stock give LRS written notice of such breach or failure. In the Reorganization
Agreement, LRS has represented that no Event of Noncompliance has occurred that
would cause an increase in the dividend rate on the Preferred Stock.
Board of Directors
The Sybron Articles and Bylaws provide that the number of directors shall
be no less than six and no more than nine (plus such number of directors as may
be elected from time to time pursuant to the terms of any Preferred Stock that
may be issued and outstanding from time to time), as determined by the Sybron
Board, and that the directors shall be divided into three classes, as nearly
equal in number as possible, the term of one class expiring each year. The
Sybron Board currently consists of eight directors. Directors are elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
shareholders meeting at which a quorum is present.
Notwithstanding the foregoing, whenever the holders of any issued Sybron
Preferred Stock shall have the right, voting separately by class or series, to
elect directors at an annual or special meeting of shareholders, the election,
term of office, filling of vacancies and other features of directorships shall
be governed by the terms of the Sybron Articles or resolution of the Sybron
Board creating such Preferred Stock, and any directors so elected shall not be
divided into classes unless expressly so provided.
The LRS Certificate provides that the number of directors which constitute
the whole LRS Board shall be designated in the LRS Bylaws. The LRS Bylaws
provide that the LRS Board shall consist of seven members. Each director is
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Directors are elected by a plurality of the votes cast.
Pursuant to the LRS Stockholders Agreement, certain LRS Stockholders have the
right to designate members of the LRS Board as follows: (i) Liberty has the
right to designate two directors; presently Peter Bennett and Michael Kluger;
(ii) Robert Stockman and Robert Johnston collectively have the right to
designate one director; presently Robert Stockman; (iii) Kenneth Rainin has the
right to designate one director; presently Kenneth Rainin; (iv) Liberty, Robert
Stockman, Robert Johnston and Kenneth Rainin collectively have the right to
designate two directors; presently William Crouse, with one vacancy; and (v)
the parties to the LRS Stockholders Agreement will vote their shares of LRS
Common Stock so that the Chief Executive Officer of "A" Company, presently
Gordon Nye, serves as a director.
Removal of Directors
The Sybron Articles and Bylaws provide that the removal of a director may
be made only for cause and only by the affirmative vote of a majority of the
votes then entitled to be cast in an election of directors, taken at a meeting
of shareholders called for that purpose. If a director is elected by a voting
group of shareholders, only the shareholders of that voting group may
participate in the vote to remove that director.
The LRS Bylaws provide that any director may be removed, with or without
cause, by the holders of a majority of the shares then entitled to vote at an
election of directors, unless such right of removal is otherwise restricted by
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statute, the LRS Certificate (which is silent as to such removal) or by any
Voting Agreement (which is defined as any agreement among LRS and holders of a
majority of the LRS Common Stock calculated on a fully-diluted basis). The LRS
Stockholders Agreement provides that any director designated by any person or
group of persons may only be removed upon the written request of the person or
persons who designated such director and under no other circumstance.
Vacancies on the Board of Directors
The Sybron Articles and Bylaws provide that vacancies on the Sybron
Board, including but not limited to a vacancy created by an increase in the
number of directors or the removal of a director, shall be filled only by the
affirmative vote of a majority of the directors then in office, even if such
majority is less than a quorum of the Board, or by a sole remaining director.
If the vacant office was held by a director elected by a voting group of
shareholders, only the remaining directors elected by that voting group may
vote to fill the vacancy. If no director entitled to fill the vacancy remains
in office, such vacancy may be filled by the voting group of shareholders
entitled to elect such director. Any director elected to fill a vacancy shall
serve until the next election of the class for which such director shall have
been chosen.
The LRS Bylaws provide that vacancies on the LRS Board, and newly
created directorships resulting from any increase in the authorized number of
directors elected by all of the stockholders having the right to vote as a
single class, may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. Whenever the
holders of any class or classes of stock or series thereof are entitled to
elect one or more directors, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
Amendments to Articles of Incorporation or Certificate of Incorporation
The WBCL generally provides that amendments to a corporation's articles
of incorporation must be approved by a majority of the votes cast by each
voting group (class(es) or series of shares) entitled to vote thereon, if a
quorum exists, unless a greater proportion is required by the WBCL or the
corporation's articles or bylaws. The Sybron Articles provide that amendments
to Article VII (relating to the powers of the corporation vested in the Sybron
Board, including the power to amend the Bylaws subject to the right of the
shareholders to amend the Bylaws by a two-thirds vote as described below),
Article VIII (relating to the number and staggered terms of directors, the
removal of directors and the filling of vacancies), Article X (relating to the
call of a special meeting of the shareholders), and Article IX (which sets
forth the higher voting requirements for amending Articles VII, VIII, IX and X)
require the affirmative vote of the holders of at least two-thirds of the votes
entitled to be cast thereon at any annual or special meeting of the
shareholders.
The LRS Certificate provides that the corporation reserves the right to
amend, alter, change or repeal any provision of the LRS Certificate in any
manner prescribed by statute. In addition, the LRS Certificate requires
amendments, modifications or waivers to the sections of the LRS Certificate
relating to LRS Preferred Stock (including one in effect accomplished by merger
or consolidation of LRS with another corporation) to be approved by the prior
written consent of the holders of at least 75% of the outstanding LRS Preferred
Stock. Amendments, modifications or waivers of any section which applies
solely to the Series A or Series B LRS Preferred Stock will only be effective
if such amendment, modification or waiver is approved by the prior written
consent of the holders of at least 75% of the Series A or Series B LRS
Preferred Stock, respectively.
Amendments to Bylaws
The Sybron Articles and Bylaws provide that the Bylaws may be altered,
amended or repealed and new bylaws may be adopted by the shareholders by the
affirmative vote of the holders of at least two-thirds of the votes entitled to
be cast thereon at any annual or special meeting of shareholders. In addition,
the Sybron Bylaws may be amended or repealed and new bylaws may be adopted by
the Sybron Board by the affirmative vote of a majority of the directors present
at a meeting at which is quorum is present, but (a) no bylaw adopted by the
shareholders shall be amended,
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repealed or readopted by the Sybron Board if the bylaw so adopted so provides
and (b) a bylaw adopted or amended by the shareholders that fixes a greater or
lower quorum requirement or a greater voting requirement for the Sybron Board
than otherwise is provided in the WBCL may not be amended or repealed by the
Sybron Board unless the bylaw expressly provides that it may be amended or
repealed by a specified vote of the Sybron Board. Finally, any action taken or
authorized by the shareholders or by the Sybron Board, which would be
inconsistent with the Bylaws then in effect but is taken or authorized by a vote
that would be sufficient to amend the Bylaws so that the Bylaws would be
consistent with such action, shall be given the same effect as though the Bylaws
had been temporarily amended or suspended so far, but only so far, as is
necessary to permit the specific action so taken or authorized.
The LRS Bylaws provide that the Bylaws may be adopted, amended or
repealed by the stockholders entitled to vote; provided, however, that the LRS
Certificate may (and does) confer the power to adopt, amend or repeal bylaws
upon the LRS Board, as well.
Special Meetings
The Sybron Articles provide that special meetings of shareholders of
the corporation may be called by the Sybron Board pursuant to a resolution
adopted by a majority of the members of the Board, or by the Chairman of the
Board, or pursuant to one or more written demands signed by the holders of at
least ten percent (10%) of all the votes entitled to be cast on any issue
proposed to be considered at the proposed special meeting, which demand(s) must
describe one or more purposes for which the special meeting is to be held. The
Sybron Bylaws contain a similar provision.
The LRS Bylaws provide that special meetings of the stockholders may be
called at any time by the LRS Board, the Chairman of the Board, or the
President.
Shareholder Action by Written Consent Without a Meeting
The LRS Bylaws provide that any action required or permitted to be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing setting forth the action so taken shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
Under the WBCL, shareholder action may be taken without a meeting only
by unanimous written consent of all shareholders entitled to vote on the action,
unless the corporation s articles of incorporation permit such action to be
taken by less than unanimous consent. The Sybron Articles are silent as to
shareholder action without a meeting. Accordingly, under the WBCL and Sybron's
Bylaws, shareholders may take action without a meeting only by unanimous written
consent.
Notice of Shareholder Proposals/Nominations
The Sybron Bylaws provide that, except with respect to nominations or
proposals adopted or recommended by the Sybron Board for inclusion in the
corporation s proxy statement for its annual meeting, shareholders entitled to
vote in an annual meeting may nominate a person or persons for election as
directors or propose actions to be taken at the meeting only if written notice
of any shareholder nominations and/or proposals to be considered for a vote at
the meeting is delivered to the secretary of the corporation personally or
mailed by certified mail- return receipt requested and received not less than
sixty (60) days nor more than ninety (90) days prior to the first anniversary of
the preceding year s annual meeting; provided, however, that in the event that
the date of the meeting is changed by more than thirty (30) days from such
anniversary date, notice by the shareholder must be received no later than the
close of business on the tenth day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure of the meeting
date was made; and provided further that, notwithstanding the notice
requirements contained herein, notice of any shareholder nominations and/or
proposals shall be deemed timely received by the corporation if such
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nominations and/or proposals are delivered to the corporation in a timely
fashion in order to be considered for inclusion in the corporation s proxy
material relating to the meeting in accordance with the applicable proxy rules
of the SEC. Such written notice must contain the information specified in the
Sybron Bylaws. A similar advance notice provision applies with respect to
shareholder nominations or proposals in connection with a special meeting of
shareholders.
The LRS Bylaws provide that, to be properly brought before an annual
meeting or special meeting, nominations for the election of directors or other
business must be (a) specified in the notice of meeting given by or at the
direction of the LRS Board, (b) otherwise properly brought before the meeting by
or at the direction of the LRS Board, or (c) otherwise properly brought before
the meeting by a stockholder. For such nominations or other business to be
considered properly brought before the meeting by a stockholder, such
stockholder must have given timely notice and in proper form of his intent to
bring such business before such meeting. To be timely, such stockholder s notice
must be delivered to or mailed and received by the secretary of the corporation
not less than ninety (90) days prior to the meeting; provided, however, that in
the event that less than one hundred (100) days notice or prior public
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of
the meeting was mailed or such public disclosure was made. To be in proper form,
a stockholder s notice must contain the information specified in the LRS Bylaws.
Indemnification/Limitation of Liability
The WBCL contains provisions which, subject to certain exceptions,
limit the liability of directors to a corporation and its shareholders and
provide for mandatory indemnification of the directors and officers against
liability and expenses incurred in a proceeding to which they were a party
because of their officer or director status, unless such immunity or
indemnification rights are limited by the corporation s articles of
incorporation. The Sybron Articles contain no such limitation.
Consistent with the WBCL, the Sybron Bylaws provide that, within twenty
(20) days after receipt of a written request, the corporation shall indemnify a
director or officer, to the extent he or she has been successful on the merits
or otherwise in the defense of a proceeding, for all reasonable expenses
incurred in the proceeding if the director or officer was a party because he or
she is a director or officer of Sybron. In other cases, Sybron shall indemnify a
director or officer against all liabilities and expenses incurred by the
director or officer in a proceeding to which the director or officer was a party
because he or she is a director or officer of the corporation, unless liability
was incurred because the director or officer breached or failed to perform a
duty he or she owes to the corporation and the breach or failure to perform
constitutes: (1) a willful failure to deal fairly with the corporation or its
shareholders in connection with a matter in which director or officer has a
material conflict of interest; (2) a violation of criminal law, unless the
director or officer had reasonable cause to believe that his or her conduct was
lawful or no reasonable cause to believe that his or her conduct was unlawful;
(3) a transaction from which the director or officer derived an improper
personal profit; or (4) willful misconduct.
The LRS Certificate provides that, to the fullest extent permitted by
the DGCL, no director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. This provision invokes the Delaware limitation of liability
provision, which must be elected in a corporation s certificate of incorporation
to apply, as contrasted with the Wisconsin director immunity provision, which
applies automatically unless limited in the articles of incorporation.
The LRS Bylaws provide that LRS shall, to the maximum extent and in the
manner permitted by the DGCL, indemnify any person against expenses (including
attorneys fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending or completed
action, suit, or proceeding in which such person was or is a party or is
threatened to be made a party by reason of the fact that such person is or was a
director or officer of the corporation.
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COMPARISON OF DELAWARE AND WISCONSIN LAW
In general, as described below, the DGCL and the WBCL provide
shareholders with similar rights and protections, subject to certain
differences. A comparison of certain provisions of the DGCL and the WBCL is set
forth below. See "--Comparison of Sybron Articles and Bylaws to LRS Certificate
and Bylaws" above for a description of certain provisions contained in such
governing documents as permitted or required by the WBCL and the DGCL.
Classified Board of Directors; Removal of Directors; Vacancies
Both the DGCL and the WBCL allow a company s board of directors to be
divided into two or three classes. As noted above, the Sybron Board is
classified; the LRS Board is not. Under the DGCL, absent a provision to the
contrary in a corporation's certificate of incorporation, directors on a
classified board can be removed only for cause. The LRS Bylaws provide that
directors may be removed with or without cause. The WBCL provides for the
removal of directors with or without cause unless the articles of incorporation
or bylaws provide that the directors may be removed only for cause. The Sybron
Articles and Bylaws provide that directors may be removed only for cause.
Under the DGCL, absent a provision to the contrary in a corporation's
certificate, vacancies and newly created directorships resulting from an
increase in the authorized number of directors may be filled by a majority of
the directors then in office, even though less than a quorum, or by a sole
remaining director. The WBCL provides for the filling of any such vacancy by the
shareholders or by the affirmative vote of a majority of the directors then in
office, even though less than a quorum, unless the articles of incorporation
provide otherwise. The Sybron Articles provide for the filling of any such
vacancy by a majority of the directors then in office, unless no director
remains in office, in which case any vacancy may be filled by the shareholders.
Interested Director Transactions
Under both the DGCL and the WBCL, contracts or transactions in which
one or more of the corporation's directors has an interest are not void or
voidable solely because of such interest or because such director was present at
the directors' or shareholders' meeting where such contract or transaction was
approved, if certain conditions are met. Under the laws of both Wisconsin and
Delaware, if the director's interest is fully disclosed and a vote is taken in
good faith, such contracts or transactions may be approved by a majority vote of
the shareholders or of the disinterested directors. If the contracts or
transactions are shown to be fair and reasonable as to the corporation at the
time that they are authorized, approved or ratified by the corporation s board
of directors, separate shareholder or disinterested director approval is not
required. Under Delaware law, a quorum for a separate determination by the board
is a majority of the total number of directors, with the interested director
counted for purposes of determining whether a quorum exists. Under Wisconsin
law, a quorum is deemed to exist if a majority of directors who have no interest
in the transaction vote to authorize it; no separate quorum determination is
made. Finally, under Wisconsin law, shares owned by or voted under the control
of an interested director or an entity in which the interested director has a
material financial interest or of which he or she is a general partner may not
be counted for purposes of a shareholder vote respecting the transaction in
which the director has an interest.
Indemnification of Directors and Officers
Both the DGCL and the WBCL contain provisions permitting or requiring
the indemnification of directors and officers of a corporation for liabilities
they may incur in their capacities as such, subject to certain exceptions and
subject to the provisions of the corporation s governing documents. The LRS
Bylaws obligate LRS to indemnify its directors and officers to the fullest
extent allowed by Delaware law.
The WBCL and the Sybron Bylaws provide for mandatory indemnification of
a director or officer against certain liabilities and expenses if the director
or officer was a party to a proceeding because of his or her status as such: (a)
to the extent such director or officer is successful on the merits or otherwise
in the defense of a proceeding (whether brought derivatively or by a third
party) and (b) in proceedings in which the director or officer is not
successful in the
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defense thereof, unless it is determined that the director or officer breached
or failed to perform a duty that he or she owes to the corporation and the
breach or failure to perform constitutes: (i) a willful failure to deal fairly
with the corporation or its shareholders in connection with a matter in which
the director or officer had reasonable cause to believe that his or her conduct
was lawful or no reasonable cause to believe that his or her conduct was
unlawful; (iii) a transaction from which the director or officer derived an
improper personal profit; or (iv) willful misconduct. The WBCL specifically
states that it is the public policy of Wisconsin to require or permit
indemnification in connection with a proceeding involving securities regulation,
as described therein, to the extent otherwise required or permitted under the
WBCL. The Sybron Bylaws also require payment of a director s or officer s
litigation expenses as incurred, subject to certain conditions.
Limited Liability of Directors
The LRS Certificate contains a director immunity provision which limits
the personal liability of LRS directors to LRS or its stockholders for monetary
damages for a breach of the directors' fiduciary duty to the fullest extent
permitted by the DGCL. Under Delaware law, such an immunity provision must be
expressly included in a corporation's certificate of incorporation in order for
it to apply. The DGCL immunity provision does not limit liabilities resulting
from: (i) a breach of the director s duty of loyalty to the corporation or its
stockholders; (ii) acts or omissions not in good faith or involving intentional
misconduct or knowing violation of law; (iii) unlawful payments of dividends or
unlawful stock repurchases or redemptions; or (iv) transactions from which the
director derived an improper personal benefit.
Unlike the DGCL, under the WBCL, director immunity from liability to a
corporation or its shareholders for monetary liabilities applies automatically
unless it is specifically limited by a corporation's articles (which is not the
case with the Sybron Articles). The exceptions to the statutory immunity from
liability for directors under the WBCL are the same as the four exceptions to
the mandatory indemnification requirement under the WBCL described above. In
substance, the immunity afforded by the WBCL is substantially similar to that
provided by the LRS Certificate under the DGCL, except that any personal
liability alleged against a director for wrongful dividends or other
distributions will be limited under the WBCL unless the director s action
constitutes conduct falling within one of the four exceptions to the statutory
immunity of directors.
Amendment of Bylaws
The DGCL provides that the board of directors (as well as the
stockholders) may adopt, amend or repeal the bylaws of a Delaware corporation if
such power is conferred in the certificate of incorporation. The LRS Certificate
contains a provision conferring this power on the LRS Board. Under the WBCL,
such power is granted to the board of directors (as well as the shareholders)
unless denied by the articles or bylaws. The Sybron Articles and Bylaws do not
prohibit the Board from taking such action regarding the Sybron Bylaws; they
expressly provide that the Board may amend the Bylaws.
The LRS Bylaws provide that the LRS Bylaws may be adopted, amended, or
repealed by the stockholders entitled to vote. The Sybron Articles require the
affirmative vote of the holders of at least two-thirds (2/3) of the votes
entitled to be cast with respect to any such action for shareholder approval
thereof.
Shareholder Action by Consent
The WBCL (as does the DGCL) permits shareholders to take action without
a meeting by unanimous written consent. If a Wisconsin corporation so elects in
its articles of incorporation (and if a Delaware corporation does not provide
otherwise in its certificate of incorporation), such action may be taken by less
than unanimous written consent. The LRS Bylaws permit the taking of action by
the stockholders by less than unanimous written consent without a meeting. The
Sybron Articles do not provide that action can be taken by less than unanimous
consent, resulting in an ability of the shareholders of Sybron to act without a
meeting only by unanimous consent.
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Statutory Shareholder Liability
Wisconsin law provides that shareholders of Wisconsin domestic
corporations are personally liable for certain debts owed to employees for
services performed. While the WBCL specifies that such liability is limited to
the par value of the shares (which is $0.01 per share for Sybron Common Stock),
this has been interpreted by a Wisconsin trial court to mean the consideration
paid to a corporation for shares. This decision was affirmed by a split decision
of the Wisconsin Supreme Court without any written opinion and with one justice
abstaining. The DGCL does not contain any comparable provision.
Special Meetings of Shareholders
Under the DGCL, special meetings of the stockholders may be called by
the board of directors or by such persons as may be authorized by the
certificate of incorporation or by the bylaws. The LRS Bylaws permit a special
meeting of the stockholders to be called at any time by the LRS Board, the
Chairman of the Board, or the President. Under Wisconsin law, a special meeting
of shareholders may be called by the board of directors or by any person
authorized by the articles of incorporation or bylaws to call a special meeting,
and must be called pursuant to a written demand of the holders of not less than
ten percent (10%) of the votes entitled to be cast at such a meeting. The Sybron
Articles and Bylaws provide that special meetings of the shareholders may be
called by the Chairman or a majority of the Sybron Board, and shall be called
upon written demand by holders of shares with at least ten percent (10%) of the
votes entitled to be cast at such a meeting.
Inspection of Corporate Records
The DGCL permits any stockholder of record to inspect the corporate
records of a corporation upon a good faith showing of a proper purpose and the
stockholder list must be made available for inspection at least ten days before
a stock holders' meeting and may be inspected by any stockholder. By contrast,
under the WBCL, in order to inspect and copy the corporate records of a
corporation, including the shareholder list, a shareholder must have been a
shareholder of the corporation for at least six months before making a demand or
the shareholder must hold at least 5% of the outstanding shares of the
corporation. Under the WBCL, a shareholder's demand must also be made for a
proper purpose. In addition, under the WBCL, all shareholders (regardless of how
long they have owned stock) may, upon written demand, inspect and, subject to
satisfying the proper purpose requirement, copy the shareholder list during the
period beginning two business days after the notice of a meeting of shareholders
is given and continuing to the date of the meeting, and any shareholder may
inspect the list at any time during the meeting.
Dividends and Repurchases
Under the DGCL, a corporation may pay dividends and repurchase stock
out of surplus or, if there is no surplus, any net profits for the fiscal year
in which the dividend was declared or for the preceding fiscal year provided
that no payment may reduce capital below the amount of capital represented by
all classes of shares having a preference upon the distribution of assets. Under
the WBCL, the board of directors may authorize and the corporation may make
distributions to its shareholders unless after any such distribution the
corporation would not be able to pay its debts as they become due or its total
assets after the distribution would be less than the sum of its total
liabilities, plus the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are superior to those
receiving the distribution.
Dissenters Rights
Under both Delaware and Wisconsin law, a shareholder is entitled, under
certain circumstances, to receive payment of the fair value of the shareholder s
stock if the shareholder dissents from a proposed merger or consolidation. Under
the DGCL, dissenters rights are not available in the case of a sale of all or
substantially all of the assets of a corporation unless made applicable by
affirmative provision in the corporation s certificate. Dissenters rights also
are not available, unless affirmatively provided in the corporation s
certificate, if the shares of the Delaware corporation
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that is party to a merger or consolidation are listed on a national securities
exchange or designated as a national market security on an interdealer quotation
system by the National Association of Securities Dealers, Inc., or are held of
record by more than 2,000 persons (which is not the case for LRS), and in the
merger or consolidation shareholders receive shares of stock of the corporation
surviving or resulting from the merger or consolidation, and/or shares of stock
of any other corporation, which are so listed or designated or held of record by
more than 2,000 persons. The LRS Certificate does not affirmatively grant any
such dissenters rights.
In addition to being applicable generally in the case of a merger,
under the WBCL, dissenters rights are available in the case of a plan of share
exchange or sale of all or substantially all of the assets of a Wisconsin
corporation. Dissenters rights may also be made applicable by affirmative
provision in the articles of incorporation, bylaws or a board of directors
resolution in the case of certain amendments to the articles of incorporation,
or other actions requiring a shareholder vote. However, under the WBCL, except
in a "Section 180.1130 business combination" (as described below under
"Anti-Takeover Statutes") or unless the articles of incorporation provide
otherwise, dissenters rights are not available to holders of shares registered
on a national securities exchange or quoted on NASDAQ on the record date for a
meeting of shareholders at which action on the proposed transaction otherwise
subject to dissenters rights is to be taken. As a result, assuming the continued
listing of the Sybron Common Stock on the NYSE, under the WBCL, shareholders
will not be entitled to dissenters rights with respect to any future merger,
plan of share exchange or sale of all or substantially all of the assets of
Sybron which might occur (unless it constitutes a Section 180.1130 business
combination).
Director and Officer Discretion
Under certain provisions of the WBCL (the "Wisconsin Stakeholder
Provisions"), in discharging his or her duties to the corporation and in
determining what he or she believes to be in the best interests of the
corporation, a director or officer may, in addition to considering the effects
of any action on shareholders, consider the effects of the action on employees,
suppliers, customers, the communities in which the corporation operates and any
other factors that the director or officer considers pertinent. The DGCL does
not contain a comparable provision and, under Delaware law, the consideration
that a board may give to nonshareholder constituencies is less clear. In
considering the best interests of a corporation, under Delaware law directors
and officers can generally take into consideration the interests of
nonshareholders. However, the Delaware Supreme Court has held that the
consideration of nonshareholder constituencies is inappropriate when an active
"auction" is in process to sell a company.
Anti-Takeover Statutes
Delaware. DGCL Section 203 (the "Delaware Business Combination
Statute") applies to certain business combinations involving a corporation and
certain of its stockholders. The Delaware Business Combination Statute prevents
an "Interested Stockholder" (defined generally as a person owning 15% or more of
the corporation's outstanding voting stock) from engaging in a "Business
Combination" (defined to include a variety of transactions, including the sale
of assets, mergers and almost any significant related party transaction) with a
Delaware corporation for three years following the time such person became an
Interested Stockholder, unless (i) before such person became an Interested
Stockholder, the board of directors of the corporation approved the transaction
in which the Interested Stockholder became an Interested Stockholder or approved
the Business Combination, (ii) upon consummation of the transaction which
resulted in the Interested Stockholder becoming an Interested Stockholder, the
Interested Stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding stock held by
directors who are also officers of the corporation and by certain employee stock
ownership plans), or (iii) at or subsequent to the time such person became an
Interested Stockholder, the Business Combination is approved by the board of
directors of the corporation and authorized at a meeting of stockholders, and
not by written consent, by the affirmative vote of the holders of two-thirds of
the outstanding voting stock of the corporation not owned by the Interested
Stockholder. Unless otherwise provided in the corporation s certificate of
incorporation, the Delaware Business Combination Statute does not apply if a
corporation does not have a class of voting stock that is (i) listed on a
national securities exchange, (ii) authorized for quotation on The Nasdaq Stock
Market or (iii) held of record by more than 2,000 stockholders, unless any of
the foregoing results from action taken, directly or indirectly, by an
Interested
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Stockholder or from a transaction in which a person becomes an Interested
Stockholder. In the LRS Certificate, LRS has expressly elected not to be
governed by Section 203 of the DGCL.
Wisconsin. Sections 180.1140 to 180.1144 of the WBCL (the "Wisconsin
Business Combination Statute") regulate a broad range of "business combinations"
between a "resident domestic corporation" and an "interested stockholder." The
Wisconsin Business Combination Statute defines a "business combination" to
include: a merger or share exchange; a sale, lease, exchange, mortgage, pledge,
transfer, or other disposition of assets equal to at least 5% of the market
value of the stock or assets of the company or 10% of its earning power; the
issuance of stock or rights to purchase stock with a market value equal to at
least 5% of the outstanding stock; the adoption of a plan of liquidation; and
certain other transactions involving an "interested stockholder." An "interested
stockholder" is defined as a person who beneficially owns, directly or
indirectly, 10% of the voting power of the outstanding voting stock of a
corporation or who is an affiliate or associate of the corporation and
beneficially owned 10% of the voting power of the then outstanding voting stock
within the last three years. The Wisconsin Business Combination Statute
prohibits a corporation from engaging in a business combination (other than a
business combination of a type specifically excluded from the coverage of the
statute) with an interested stockholder for a period of three years following
the date such person becomes an interested stockholder, unless the board of
directors approved the business combination or the acquisition of the stock that
resulted in the person becoming an interested stockholder before such
acquisition. Business combinations after the three-year period following the
stock acquisition date are permitted only if (i) the board of directors approved
the acquisition of the stock prior to the acquisition date, (ii) the business
combination is approved by a majority of the outstanding voting stock not
beneficially owned by the interested stockholder, or (iii) the consideration to
be received by shareholders meets certain fair price requirements of the statute
with respect to form and amount. Unlike the prohibition on business combinations
in the Delaware Business Combination Statute, which is inapplicable if the
interested stockholder acquires at least 85% of the outstanding voting stock at
the time of becoming an interested stockholder or if during the three-year
period of the prohibition the board of directors and holders of two-thirds of
the unaffiliated shares approve the business combination, the Wisconsin Business
Combination Statute's prohibition on business combinations applies without
regard to the percentage of shares owned by the interested stockholder and
cannot be avoided during the three-year period by subsequent action of the board
of directors or shareholders. Furthermore, the Wisconsin Business Combination
Statute is triggered by the acquisition of 10% of the outstanding shares rather
than 15% as under the Delaware Business Combination Statute.
The WBCL also provides, in Sections 180.1130 to 180.1133, that certain
mergers, share exchanges or sales, leases, exchanges or other dispositions of
assets in a transaction involving a "significant shareholder" and a "resident
domestic corporation" (a "Section 180.1130 business combination") are subject to
a supermajority vote of shareholders (the "Wisconsin Fair Price Statute"), in
addition to any approval otherwise required, unless shareholders receive a fair
price for their shares that satisfies a statutory formula. A "significant
shareholder," with respect to a resident domestic corporation, is defined as a
person who beneficially owns, directly or indirectly, 10% or more of the voting
stock of the corporation, or an affiliate of the corporation which beneficially
owned, directly or indirectly, 10% or more of the voting stock of the
corporation within the last two years. A Section 180.1130 business combination
must be approved by 80% of the voting power of the corporation's stock and at
least two-thirds of the voting power of the corporation's stock not beneficially
held by the significant shareholder who is party to the relevant transaction or
any of its affiliates or associates, in each case voting together as a single
group, unless the following fair price standards have been met: (i) the
aggregate value of the per share consideration is equal to the higher of (a) the
highest price paid for any common shares of the corporation by the significant
shareholder in the transaction in which it became a significant shareholder or
within two years before the date of the business combination, (b) the market
value of the corporation's shares on the date of commencement of any tender
offer by the significant shareholder, the date on which the person became a
significant shareholder or the date of the first public announcement of the
proposed business combination, whichever is higher, or (c) the highest
liquidation or dissolution distribution to which holders of the shares would be
entitled, and (ii) either cash, or the form of consideration used by the
significant shareholder to acquire the largest number of shares, is offered.
Delaware does not have a similar statute.
Under Section 180.1150 (the "Wisconsin Control Share Statute") of the
WBCL, unless otherwise provided in the articles of incorporation, the voting
power of shares, including shares issuable upon conversion of convertible
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securities or exercise of options or warrants, of a "resident domestic
corporation", held by any person (including two or more persons acting as a
group) in excess of 20% of the voting power in the election of directors is
limited (in voting on any matter) to 10% of the full voting power of those
shares. This restriction does not apply to shares acquired directly from the
resident domestic corporation, in certain specified transactions, or in a
transaction in which the corporation's shareholders have approved restoration of
the full voting power of the otherwise restricted shares. Delaware does not have
a similar statute. In light of the 10% threshold contained in the Wisconsin
Business Combination Statute, the Wisconsin Control Share Statute threshold of
20% may not be implicated unless the board of directors approves a transaction
that permits the shareholder to exceed the 10% ownership level.
Section 180.1134 (the "Wisconsin Defensive Action Restrictions") of the
WBCL provides that, in addition to the vote otherwise required by law or the
articles of incorporation of a resident domestic corporation, the approval of
the holders of a majority of the shares entitled to vote is required before such
corporation can take certain action while a takeover offer is being made or
after a takeover offer has been publicly announced and before it is concluded.
Under the Wisconsin Defensive Action Restrictions, shareholder approval is
required for the corporation to (i) acquire more than 5% of the outstanding
voting shares at a price above the market price from any individual or
organization that owns more than 3% of the outstanding voting shares and has
held such shares for less than two years, unless a similar offer is made to
acquire all voting shares or (ii) sell or option assets of the corporation which
amount to at least 10% of the market value of the corporation, unless the
corporation has at least three independent directors (directors who are not
officers or employees) and a majority of the independent directors vote not to
have this provision apply to the corporation. Sybron currently has more than
three independent directors. The restrictions described in clause (i) above may
have the effect of deterring a shareholder from acquiring Sybron's shares with
the goal of seeking to have Sybron repurchase such shares at a premium over the
market price. Delaware does not have a similar statute.
Under the WBCL, as amended in 1997, a "resident domestic corporation"
is defined to mean a Wisconsin corporation that has a class of voting stock that
is registered or traded on a national securities exchange or that is registered
under Section 12(g) of the Exchange Act and that, as of the relevant date,
satisfies any of the following: (i) its principal offices are located in
Wisconsin; (ii) it has significant business operations located in Wisconsin;
(iii) more than 10% of the holders of record of its shares are residents of
Wisconsin; or (iv) more than 10% of its shares are held of record by residents
of Wisconsin. Sybron is a "resident domestic corporation" for purposes of the
above described provisions. A Wisconsin corporation that is otherwise subject to
certain of such statutes may preclude their applicability by an election to that
effect in its articles of incorporation. The Sybron Articles do not contain any
such election.
CERTAIN CONTRACTUAL RIGHTS OF LRS SECURITYHOLDERS
Securityholders of LRS have certain contractual rights referred to in
this Proxy Statement/Prospectus that they will not have as shareholders of
Sybron.
RIGHTS OF DISSENTING STOCKHOLDERS
Under the DGCL, unless such right has been waived, any LRS Stockholder
of record on the Record Date for the Special Meeting who does not wish to accept
the shares of Sybron Common Stock into which the stockholder s shares of LRS
Common Stock or LRS Preferred Stock would be converted pursuant to the Merger
has the right to dissent from the Merger and seek an appraisal of, and be paid
the fair value for, such shares (exclusive of any element of value arising from
the accomplishment or expectation of Merger), provided that such stockholder
complies with the provisions of Section 262 of the DGCL ("Section 262").
Exercise of such appraisal rights, if the statutory procedures are complied
with, would result in a judicial determination of the "fair value" of such
shares, together with a fair rate of interest, if any, to be paid upon the
amount determined to be the fair value. Any such judicial determination of the
fair value of the shares could be based upon considerations other than or in
addition to the price to be paid in the Merger and the market value of the
shares, including asset values and other valuation considerations generally
accepted in the investment community. Consequently, the fair value determined
for the shares could be the same as or more or less than
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the price per share paid pursuant to the Merger, and the payment of such fair
value would take place subsequent to payment pursuant to the Merger.
Any stockholder who desires to exercise appraisal rights should review
Section 262 carefully and is urged to consult legal counsel before electing or
attempting to exercise such rights.
THE FOLLOWING IS A BRIEF SUMMARY OF THE STATUTORY PROCEDURES TO BE
FOLLOWED BY A STOCKHOLDER IN ORDER TO DISSENT FROM THE MERGER AND PERFECT
APPRAISAL RIGHTS UNDER THE DGCL. THIS SUMMARY IS NOT INTENDED TO BE COMPLETE AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SECTION 262, THE FULL TEXT OF WHICH
IS SET FORTH IN APPENDIX B TO THIS PROXY STATEMENT/PROSPECTUS. THIS SUMMARY AND
APPENDIX B SHOULD BE REVIEWED CAREFULLY BY ANY STOCKHOLDER WHO WISHES TO
EXERCISE STATUTORY APPRAISAL RIGHTS, OR WHO WISHES TO PRESERVE THE RIGHT TO DO
SO, BECAUSE FAILURE TO COMPLY STRICTLY WITH THE PROCEDURES SET FORTH IN SECTION
262 MAY RESULT IN THE LOSS OF APPRAISAL RIGHTS.
Pursuant to the terms of the Amended and Restated Stockholders
Agreement of LRS dated as of June 13, 1994 (the "LRS Stockholders Agreement"),
holders of shares of LRS Common subject thereto must waive any dissenters,
appraisal or similar rights with respect to the Merger if the Merger is approved
by holders of a majority of the shares of LRS Common covered thereby. Holders of
approximately 91.2% of the outstanding shares of LRS Common are parties to the
LRS Stockholders Agreement. Accordingly, the following discussion relates to
stockholders who have not waived their appraisal rights.
A holder of record of LRS Common Stock or LRS Preferred Stock as of the
Record Date who makes the demand described below with respect to such shares,
who continuously is the record holder of such shares through the Effective Time
of Merger, who otherwise complies with the statutory requirements of Section 262
and who neither votes in favor of the Reorganization Agreement nor consents
thereto in writing may be entitled to an appraisal by the Delaware Court of
Chancery (the "Delaware Court") of the fair value of his or her shares of stock.
All references in this summary of appraisal rights to a "stockholder" is to the
record holder or holders of shares of LRS Common Stock or LRS Preferred Stock on
the Record Date. Shares held by stockholders who assert appraisal rights and
comply with all relevant provisions of Section 262 are referred to in the
Reorganization Agreement as "Dissenting Shares."
Under Section 262, where a merger is to be submitted for approval at a
meeting of stockholders, as in the case of the Special Meeting, not less than 20
days prior to the meeting, each constituent corporation must notify each of the
holders of its stock for which appraisal rights are available that such
appraisal rights are available and include in each such notice a copy of Section
262. This Proxy Statement/Prospectus shall constitute such notice to the record
holders of LRS Common and Preferred Stock.
Stockholders who desire to exercise their appraisal rights must not
vote in favor of the Reorganization Agreement and must deliver a separate
written demand for appraisal to LRS prior to the vote by the stockholders of LRS
on the Reorganization Agreement. A stockholder who signs and returns a proxy
without expressly directing by checking the applicable boxes on the proxy card
enclosed herewith that his or her shares of stock of LRS be voted against the
Reorganization Agreement, or that an abstention be registered with respect to
his or her shares of stock in connection with the proposal, will effectively
have thereby waived his or her appraisal rights as to those shares of stock of
LRS because, in the absence of express contrary instructions, such shares of
stock of LRS will be voted in favor of the Reorganization Agreement. See "The
Special Meeting--Proxies." Accordingly, a stockholder who desires to pursue
dissenter s rights must, as one of the procedural steps involved, either (i)
refrain from executing and returning the enclosed proxy card and from voting in
person in favor of such proposal to approve the Reorganization Agreement or (ii)
check either the "Against" or the "Abstain" box next to such proposal on the
proxy card or affirmatively vote in person against the proposal or register in
person an abstention with respect thereto.
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A demand for appraisal must be executed by or on behalf of the
stockholder of record, fully and correctly, as such dissenting stockholder s
name appears on the certificate(s) representing the Dissenting Shares and must
reasonably inform LRS of the identity of the stockholder of record and that such
record stockholder intends thereby to demand appraisal of the shares. A demand
for appraisal cannot be made by the beneficial owner if he does not also hold
the Dissenting Shares of record. The beneficial holder must, in such case, have
the record owner submit the required demand in respect of such Dissenting
Shares. A beneficial owner should be aware that the holder of record may
actually be a central security depository, broker or other nominee. Accordingly,
to ensure compliance with the DGCL, such beneficial owner must ascertain the
correct holder of record with respect to his Dissenting Shares and have only
that holder submit the required demand. A person having a beneficial interest in
shares of stock of LRS that are held of record in the name of another person,
such as a broker, fiduciary or other nominee, must act promptly to cause the
record holder to follow the steps summarized herein properly and in a timely
manner to perfect whatever appraisal rights are available. If the shares of
stock of LRS are owned of record by a person other than the beneficial owner,
including a broker, fiduciary (such as a trustee, guardian or custodian) or
other nominee, such demand must be executed by or for the record owner. If the
shares of stock of LRS are owned of record by more than one person, as in a
joint tenancy or tenancy in common, such demand must be executed by or for all
joint owners. An authorized agent, including an agent for two or more joint
owners, may execute the demand for appraisal for a stockholder of record;
however, the agent must identify the record owner and expressly disclose the
fact that, in exercising the demand, such person is acting as agent for the
record owner.
A record owner, such as a broker, fiduciary or other nominee, who holds
shares of stock of LRS as a nominee for others, may exercise appraisal rights
with respect to the shares held for all or less than all beneficial owners of
shares as to which such person is the record owner. In such case, the written
demand must set forth the number of shares covered by such demand. Where the
number of shares is not expressly stated, the demand will be presumed to cover
all shares of stock of LRS outstanding in the name of such record owner.
Any stockholder (other than a record owner who is acting as a nominee
holder for different beneficial owners) seeking to exercise appraisal rights for
a portion, but not all, of such stockholder s stock should consult with legal
counsel before taking any such action. LRS believes that Delaware law has not
clearly addressed the ability of such a stockholder to exercise appraisal rights
with respect to a portion, but not all, of such stockholder s stock. LRS may
assert that by doing so such stockholder has waived such stockholder s appraisal
rights, and a Delaware court may find such stockholder has so waived such
stockholder s appraisal rights.
A stockholder who elects to exercise appraisal rights, if available,
should mail or deliver his or her written demand to Corporate Secretary, LRS
Acquisition Corp., 9900 Old Grove Road, San Diego, California 92131-1683.
The written demand for appraisal should specify the stockholder s name
and mailing address, the number and class of shares of stock of LRS owned, and
that the stockholder is thereby demanding appraisal of his or her shares. A
proxy or vote against the Reorganization Agreement will not by itself constitute
such a demand. Within 10 days after the Effective Time of Merger, the surviving
corporation, LRS, must provide notice to all stockholders who have complied with
Section 262 that the Merger has become effective.
Within 120 days after the Effective Time of Merger, either the
surviving corporation or any stockholder who has complied with the required
conditions of Section 262 may file a petition in the Delaware Court, with a copy
served on the surviving corporation in the case of a petition filed by a
stockholder, demanding a determination of the fair value of the stock of all
dissenting stockholders. LRS does not intend to file such a petition.
Accordingly, LRS stockholders who desire to have their shares appraised should
initiate any petitions necessary for the perfection of their appraisal rights
within the time periods and in the manner prescribed in Section 262. Within 120
days after the Effective Time of Merger, any stockholder who has theretofore
complied with the applicable provisions of Section 262 will be entitled, upon
written request, to receive from the surviving corporation a statement setting
forth the aggregate number of shares of each class of stock of LRS not voting in
favor of the Reorganization Agreement and with respect to which demands for
appraisal were received by LRS and the number of holders of such shares. Such
statement must be mailed within 10 days after the written request therefor has
been received by the surviving corporation. If a petition for appraisal is
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duly filed by a dissenting stockholder and a copy there of is delivered to LRS,
LRS will then be obligated within 20 days of such delivery to provide the
Register in Chancery with a duly verified list containing the names and
addresses of all dissenting stockholders.
If a petition for an appraisal is timely filed and assuming appraisal
rights are available, at the hearing on such petition, the Delaware Court will
determine which stockholders, if any, are entitled to appraisal rights. The
Delaware Court may require the stockholders who have demanded an appraisal for
their shares and who hold stock represented by certificates to submit their
certificates of stock to the Register in Chancery for notation thereon of the
pendency of the appraisal proceedings; and if any stockholder fails to comply
with such direction, the Delaware Court may dismiss the proceedings as to such
stockholder. Where proceedings are not dismissed, the Delaware Court will
appraise the shares of stock of LRS, determining the fair value of such shares
exclusive of any element of value arising from the accomplishment or expectation
of the Merger, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining fair value, the
Delaware Court is to take into account all relevant factors. In Weinberger v.
UOP Inc., the Delaware Supreme Court discussed the factors that could be
considered in determining fair value in an appraisal proceeding, stating that
"proof of value by any techniques or methods which are generally considered
acceptable in the financial community and otherwise admissible in court" should
be considered, and that "fair price obviously requires consideration of all
relevant factors involving the value of a company." The Delaware Supreme Court
stated that in making this determination of fair value the court must consider
market value, asset value, dividends, earnings prospects, the nature of the
enterprise and any other facts ascertainable as of the date of the merger that
throw light on future prospects of the merged corporation. In Weinberger, the
Delaware Supreme Court stated that "elements of future value, including the
nature of the enterprise, which are known or susceptible of proof as of the date
of the merger and not the product of speculation, may be considered." Section
262, however, provides that fair value is to be "exclusive of any element of
value arising from the accomplishment or expectation of the merger." When the
value is so determined, the Delaware Court will direct the payment by LRS of
such value, with interest thereon if the Delaware Court so determines, to the
dissenting stockholders, entitled to receive the same, upon surrender to LRS by
such dissenting stockholders of the certificates representing their Dissenting
Shares.
The cost of the appraisal proceeding may be determined by the Delaware
Court and taxed against the parties as the Delaware Court deems equitable in the
circumstances. Upon application of a dissenting stockholder of LRS, the Delaware
Court may order that all or a portion of the expenses incurred by any dissenting
stockholder in connection with the appraisal proceeding, including, without
limitation, reasonable attorney s fees and the fees and expenses of experts, be
charged pro rata against the value of all shares of stock entitled to appraisal.
Any holder of shares of stock of LRS who has duly demanded appraisal in
compliance with Section 262 will not, after the Effective Time of Merger, be
entitled to vote for any purpose any shares subject to such demand or to receive
payment of dividends or other distributions on such shares, except for dividends
or distributions payable to stockholders of record at a date prior to the
Effective Time of Merger.
If no petition for appraisal is filed with the Delaware Court within
120 days after the Effective Time of Merger, stockholders rights to appraisal
shall cease. Any stockholder may withdraw such stockholder s demand for
appraisal by delivering to the surviving corporation a written withdrawal of his
or her demand for appraisal and acceptance of the Merger, except that (i) any
such attempt to withdraw made more than 60 days after the Effective Time of
Merger will require written approval of the surviving corporation and (ii) no
appraisal proceeding in the Delaware Court will be dismissed as to any
stockholder without the approval of the Delaware Court, which may be conditioned
upon such terms as the Delaware Court deems just.
If any dissenting stockholder fails to perfect or effectively withdraws
or loses his appraisal rights, such stockholder s shares shall thereupon be
deemed to have been converted into shares of Sybron Common Stock as of the
Effective Time of Merger as provided in the Reorganization Agreement.
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CERTAIN INFORMATION CONCERNING SYBRON
Information regarding the names, ages, positions and business
backgrounds of the executive officers and directors of Sybron, as well as
additional information, including executive compensation, security ownership of
certain beneficial owners and management and certain relationships and related
transactions, is incorporated by reference to Items 10, 11, 12 and 13 of
Sybron's Annual Report on Form 10-K for the year ended September 30, 1997 (which
incorporates portions of Sybron's Proxy Statement, dated December 23, 1997, for
its Annual Meeting of Shareholders held on January 30, 1998).
LEGAL OPINION
The legality of the Sybron Common Stock to be issued in the Merger will
be passed upon for Sybron by Quarles & Brady, Milwaukee, Wisconsin. Quarles &
Brady attorneys providing services with respect to this matter own an aggregate
of approximately 3,400 shares of Sybron Common Stock.
EXPERTS
The consolidated financial statements and schedule of Sybron
International Corporation incorporated in this Proxy Statement/Prospectus by
reference to Sybron'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.
The consolidated financial statements of LRS Acquisition Corp. at
December 31, 1996, and 1997 and for each of the three years in the period ended
December 31, 1997 included in this Proxy Statement/Prospectus and the
Registration Statement have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon appearing elsewhere herein, and
are included herein in reliance upon such report given upon the authority of
said firm as experts in accounting and auditing.
OTHER MATTERS
The management of LRS knows of no matters to be acted upon at the
Special Meeting other than as set forth in the Notice of such Special Meeting as
attached to this Proxy Statement/Prospectus. If any other matters properly come
before the Special Meeting, or any adjournment or postponement thereof, it is
the intention of the persons named in the proxy to vote such proxies in
accordance with their best judgment on such matters.
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INDEX TO LRS FINANCIAL STATEMENTS
LRS Acquisition Corp.
Index to Consolidated Financial Statements
Report of Ernst & Young LLP, Independent Auditors.........................F-2
Consolidated Balance Sheets as of December 31, 1996 and 1997...............F-3
Consolidated Statements of Operations for the years ended
December 31, 1995, 1996 and 1997........................................F-4
Consolidated Statements of Stockholders' Deficit for the years ended
December 31, 1995, 1996 and 1997........................................F-5
Consolidated Statements of Cash Flows for the years ended
December 31, 1995, 1996 and 1997 .......................................F-6
Notes to Consolidated Financial Statements.................................F-7
F-1
85
Report of Ernst & Young LLP, Independent Auditors
The Board of Directors and Stockholders
LRS Acquisition Corp.
We have audited the accompanying consolidated balance sheets of LRS Acquisition
Corp. as of December 31, 1996 and 1997, and the related consolidated statements
of operations, stockholders' deficit and cash flows for each of the three years
in the period ended December 31, 1997. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of LRS
Acquisition Corp. at December 31, 1996 and 1997, and the consolidated results of
its operations and its cash flows for each of the three years in the period
ended December 31, 1997, in conformity with generally accepted accounting
principles.
ERNST & YOUNG LLP
San Diego, California
February 16, 1998
F-2
86
LRS Acquisition Corp.
Consolidated Balance Sheets
(in thousands, except share and per share data)
DECEMBER 31,
1996 1997
------------------------------------
ASSETS
Current assets:
Cash and cash equivalents $ 2,765 $ 2,177
Accounts receivable less allowance of $964 and $797 for 1996 and 1997, 10,088 10,605
respectively
Inventories 6,250 8,807
Deferred income taxes 2,429 1,833
Other current assets 487 351
-------- --------
Total current assets 22,019 23,773
Property, plant, and equipment, net 8,809 9,000
Goodwill, less accumulated amortization of $1,003 and $1,416 for 1996 and 15,531 15,118
1997, respectively
Deferred income taxes 308 5
Debt issue costs, net 578 449
Note receivable from stockholder 105 105
Other assets 130 41
-------- --------
Total assets $ 47,480 $ 48,491
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities:
Note payable to stockholder under line of credit $ -- $ 500
Accounts payable 1,612 2,349
Accrued liabilities 871 806
Accrued compensation 1,627 1,781
Accrued income and other taxes 636 1,076
Current portion of loans payable to stockholder 3,000 4,000
Current portion of loans payable to bank and others 228 203
-------- --------
Total current liabilities 7,974 10,715
Loans payable to stockholder, less current portion 30,728 26,944
Loans payable to bank and others, less current portion 2,622 2,422
Commitments
Series A redeemable preferred stock, $1.00 par value,
5,000 shares authorized, 4,030 shares issued and outstanding in 1996 and
4,111 shares issued and outstanding in 1997, total redemption value of 4,111 4,111
$4,111 at December 31, 1997
Series B redeemable preferred stock, $1.00 par value,
7,000 shares authorized, 5,193 shares issued and outstanding in 1996 and
1997, total redemption value of $6,904 at December 31, 1997 6,358 6,904
Stockholders' deficit:
Common stock, $.01 par value, 12,000 shares authorized, 7,782 and 7,755
shares issued and outstanding in 1996 and 1997, respectively - -
Paid-in capital 2,171 2,998
Warrant 120 120
Deferred compensation -- (674)
Accumulated deficit (6,673) (4,992)
Foreign currency translation adjustment 99 (27)
Note receivable from stockholder (30) (30)
-------- --------
Total stockholders' deficit (4,313) (2,605)
-------- --------
Total liabilities and stockholders' deficit $ 47,480 $ 48,491
======== ========
See accompanying notes
F-3
87
LRS Acquisition Corp.
Consolidated Statements of Operations
(in thousands, except share and per share data)
YEARS ENDED DECEMBER 31,
1995 1996 1997
--------------------------------
Net sales $ 41,652 $ 43,493 $ 45,256
Cost of products sold 17,907 17,827 17,874
--------------------------------
Gross profit 23,745 25,666 27,382
Operating expenses:
Selling and marketing 11,646 12,574 12,620
General and administrative 4,437 5,671 5,271
Research and development 1,480 1,398 1,169
--------------------------------
Total operating expenses 17,563 19,643 19,060
--------------------------------
Income from operations 6,182 6,023 8,322
Interest expense, net 4,890 4,311 4,153
--------------------------------
Income before income taxes 1,292 1,712 4,169
Provision for income taxes 405 473 1,611
--------------------------------
Net income 887 1,239 2,558
Dividends to preferred stockholders (783) (818) (877)
================================
Net income attributable to common stock $ 104 $ 421 $ 1,681
================================
Net income per common share:
Basic $ 14.71 $ 58.07 $ 229.39
================================
Diluted $ 14.71 $ 58.07 $ 169.46
================================
Shares used in per common share computations:
Basic 7,071 7,250 7,328
================================
Diluted 7,071 7,250 9,920
================================
See accompanying notes.
F-4
88
LRS Acquisition Corp.
Consolidated Statements of Stockholders' Deficit
(in thousands, except share data)
COMMON STOCK
---------------------------- PAID-IN DEFERRED ACCUMULATED
SHARES AMOUNT CAPITAL WARRANT COMPENSATION DEFICIT
------------------------------------------------------------------------------
Balance at December 31, 1994 7,200 $ - $2,113 $120 $ - $(7,198)
Issuance of common stock 400 - 40 - - -
Repurchase of common stock (200) - (20) - - -
Net income - - - - - 887
Foreign currency translation adjustment - - - - - -
Preferred stock dividends - - - - - (783)
-----------------------------------------------------------------------------
Balance at December 31, 1995 7,400 - 2,133 120 - (7,094)
Issuance of common stock 548 - 55 - - -
Repurchase of common stock (166) - (17) - - -
Net income - - - - - 1,239
Foreign currency translation adjustment - - - - - -
Preferred stock dividends - - - - - (818)
-----------------------------------------------------------------------------
Balance at December 31, 1996 7,782 - 2,171 120 - (6,673)
Repurchase of common stock (27) - (3) - - -
Net income - - - - - 2,558
Foreign currency translation adjustment - - - - - -
Preferred stock dividends - - - - - (877)
Deferred compensation - - 830 - (830) -
Amortization of deferred compensation - - - - 156 -
-----------------------------------------------------------------------------
Balance at December 31, 1997 7,755 $ - $2,998 $120 $(674) $(4,992)
=============================================================================
FOREIGN NOTES
CURRENCY RECEIVABLE TOTAL
TRANSLATION FROM STOCKHOLDERS'
ADJUSTMENT STOCKHOLDER DEFICIT
----------------------------------------
Balance at December 31, 1994 $(238) $ - $(5,203)
Issuance of common stock - - 40
Repurchase of common stock - - (20)
Net income - - 887
Foreign currency translation adjustment 374 - 374
Preferred stock dividends - - (783)
--------------------------------------
Balance at December 31, 1995 136 - (4,705)
Issuance of common stock - (30) 25
Repurchase of common stock - - (17)
Net income - - 1,239
Foreign currency translation adjustment (37) - (37)
Preferred stock dividends - - (818)
--------------------------------------
Balance at December 31, 1996 99 (30) (4,313)
Repurchase of common stock - - (3)
Net income - - 2,558
Foreign currency translation adjustment (126) - (126)
Preferred stock dividends - - (877)
Deferred compensation - - -
Amortization of deferred compensation - - 156
--------------------------------------
Balance at December 31, 1997 $ (27) $ (30) $(2,605)
======================================
See accompanying notes.
F-5
89
LRS Acquisition Corp.
Consolidated Statements of Cash Flows
(in thousands)
YEARS ENDED DECEMBER 31,
1995 1996 1997
--------------------------------------
Cash flows from operating activities:
Net income $ 887 $ 1,239 $ 2,558
Adjustments to reconcile net income to net cash provided by
operating activities:
Deferred income tax expense (benefit) 317 125 899
Depreciation 1,270 1,234 1,106
Goodwill amortization 408 407 413
Amortization of debt discount and debt issue costs 359 353 345
Amortization of deferred compensation - - 156
Increase in provision for doubtful accounts 188 388 119
Payment of expenses through issuance of debt 125 - -
Change in operating assets and liabilities:
Decrease (increase) in accounts receivable 345 (1,152) (636)
Decrease (increase) in inventories 2,204 1,519 (2,557)
Decrease in other assets 679 189 225
Increase (decrease) in accounts payable (159) 222 737
Increase (decrease) in accrued liabilities (338) 582 529
-----------------------------
Net cash provided by operating activities 6,285 5,106 3,894
Cash flows from investing activities:
Capital expenditures (1,479) (1,459) (1,297)
Note receivable from stockholder - (105) -
Increase in goodwill, net (86) - -
-----------------------------
Net cash used in investing activities (1,565) (1,564) (1,297)
Cash flows from financing activities:
Borrowings on line of credit - - 2,000
Repayments on line of credit - - (1,500)
Dividends (253) (334) (331)
Payments on long-term debt (4,498) (3,712) (3,225)
Reimbursement of pre-acquisition contingent liability 375 - -
Proceeds from sale (repurchase) of stock, net 20 8 (3)
-----------------------------
Net cash used in financing activities (4,356) (4,038) (3,059)
Effect of exchange rate on cash 374 (37) (126)
-----------------------------
Net increase (decrease) in cash and cash equivalents 738 (533) (588)
Cash and cash equivalents at beginning of the period 2,560 3,298 2,765
=============================
Cash and cash equivalents at end of the period $ 3,298 $ 2,765 $ 2,177
=============================
Supplemental disclosures (Note 2)
See accompanying notes.
F-6
90
LRS Acquisition Corp.
Notes to Consolidated Financial Statements
December 31, 1997
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION
LRS Acquisition Corp. (the "Company"), a Delaware corporation, designs,
manufactures, markets and distributes orthodontic appliances and products
through its wholly owned subsidiaries "A" Company Orthodontics and affiliates.
The Company sells primarily in the North American and European markets to
orthodontists through Company representatives and distributors.
The Company was incorporated on May 16, 1994 for the purpose of acquiring from
Johnson & Johnson (the "Seller"), in a highly leveraged transaction, the
orthodontic appliance business conducted under the name of "A" Company. The
acquisition was completed effective June 16, 1994. Prior to June 16, 1994, the
activities of the Company consisted of organization and formation related
transactions. Operations commenced upon completing the acquisition.
The following table sets forth the sources and uses of funds in connection with
the acquisition (in thousands):
Sources:
Debt securities at face value $41,000
Common and preferred equity 11,163
=======
$52,163
=======
Uses:
Purchase price $50,000
Debt issue costs 871
Acquisition costs 288
Cash for working capital 1,004
=======
$52,163
=======
The equity for the transaction was primarily provided by certain individual
investors and the State Board of Administration of Florida ("SBA"). Pursuant to
an investment management agreement, Liberty Partners, L.P. ("Liberty") invests
on behalf of SBA, in debt and equity securities of middle market companies. The
SBA has given all voting and disposition power over its securities to Liberty.
The $41,000,000 of debt financing for the acquisition was also provided by the
SBA.
F-7
91
LRS Acquisition Corp.
Notes to Consolidated Financial Statement (continued)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
BASIS OF PRESENTATION
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiaries "A" Company Orthodontics and its affiliates.
Significant intercompany accounts and transactions have been eliminated in
consolidation.
CASH AND CASH EQUIVALENTS
The Company considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents.
CONCENTRATION OF CREDIT RISK AND REVENUE RECOGNITION
The Company records revenues upon shipment. Accounts receivable are derived from
sales primarily to orthodontists which are denominated in various currencies.
The Company sells its products primarily in the United States and Europe. The
Company believes that the concentration of credit risk in its trade receivables
is mitigated by the Company's credit evaluation process, relatively short
collection terms and dispersion of its customer base. The Company generally does
not require collateral. The Company has not experienced significant losses on
trade receivables from any particular customer or geographic region for any
period presented.
INVENTORIES
Inventories are carried at the lower of cost or market using the first-in,
first-out (FIFO) method.
PROPERTY, PLANT, AND EQUIPMENT
Property, plant, and equipment is stated at cost, less accumulated depreciation.
Depreciation of property, plant, and equipment is provided using the
straight-line method over the estimated useful lives of the respective assets
which range from 3 to 30 years.
GOODWILL
The excess of cost over the fair value of the net tangible assets purchased
(goodwill) arose from the Company's acquisition of the orthodontic appliance
business from Johnson & Johnson in 1994 and is being amortized over 40 years.
F-8
92
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
IMPAIRMENT OF LONG-LIVED ASSETS
In 1996, the Company adopted Statement of Financial Accounting Standards (SFAS)
No. 121, Accounting for Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed Of, regarding the impairment of the long-lived assets
including identifiable intangibles and goodwill. SFAS 121 requires impairment
losses to be recorded on long-term assets used in operations when indicators of
impairment are present and the undiscounted cash flows estimated to be generated
by those assets are less than the assets carrying amount. SFAS 121 also
addresses the accounting for long-lived assets that are expected to be disposed
of. The Company's adoption of SFAS 121 did not have a material effect on the
Company's financial position or results of operations.
DEBT ISSUE COSTS AND INTEREST EXPENSE
Costs incurred to obtain financing have been capitalized and are being amortized
over the life of the related debt using the interest method. Interest expense
includes amounts due under the Company's various loan agreements, amortization
of debt issue costs and amortization of debt discount.
FOREIGN CURRENCY TRANSLATION
In accordance with SFAS No. 52, balance sheet accounts of the Company's foreign
operations are translated from foreign currencies into U.S. dollars at year-end
or historical rates, while income and expenses are translated at the weighted
average exchange rates for the year. Translation gains or losses are shown as a
separate component of stockholders' equity. Gains and losses resulting from
foreign currency transactions (transactions denominated in a currency other than
the entity's functional currency) are included in the results of operations.
Such foreign currency transaction gains (losses) approximated $240,000,
$(172,000) and $(493,000) for the years ended December 31, 1995, 1996 and 1997,
respectively.
These gains and losses have been included in general and administrative expenses
in the accompanying consolidated statement of operations.
F-9
93
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported revenues and expenses during the reporting period. Actual results
could differ from those estimates.
STOCK OPTIONS
In October 1995, the Financial Accounting Standards Board issued SFAS No. 123,
Accounting for Stock-Based Compensation, effective for fiscal years beginning
after December 15, 1995. SFAS 123 established the fair value-based method of
accounting for stock-based compensation arrangements under which compensation
cost is determined using the fair value of the stock option at the grant date
and the number of options vested, and is recognized over the periods in which
the related services are rendered as allowed by SFAS 123. The Company has
elected to continue with the current intrinsic value-based method, under
Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to
Employees and related interpretations.
ADVERTISING COSTS
Advertising costs are expensed as incurred. Total advertising costs
expensed during the years ended December 31, 1995 1996 and 1997 was
$1,038,000, $1,332,000 and $1,274,000, respectively.
NET INCOME PER COMMON SHARE
In February 1997, the Financial Accounting Standards Board issued SFAS No. 128,
Earnings per Share, which supersedes APB Opinion 15. SFAS 128 replaces the
presentation of primary earnings per share (EPS) with "Basic EPS" which includes
no dilution and is based on weighted-average common shares outstanding for the
period.
Companies with complex capital structures, including the Company, are required
to present "Diluted EPS" that reflects the potential dilution of securities such
as employee stock options and warrants to purchase common stock.
F-10
94
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board issued SFAS No. 130,
Reporting Comprehensive Income, and SFAS No. 131, Segment Information. Both of
these standards are effective for fiscal years beginning after December 15,
1997. SFAS 130 requires that all components of comprehensive income, including
net income, be reported in the financial statements in the period in which they
are recognized. Comprehensive income is defined as the change in equity during a
period from transactions and other events and circumstances from non-owner
sources. Net income and other comprehensive income, including foreign currency
translation adjustment and unrealized gains and losses on investments shall be
reported, net of their related tax effect, to arrive at comprehensive income.
The Company intends to adopt SFAS 130 in 1998 and the components of
comprehensive income, including comprehensive income per share, will be
reported.
Historically, the Company has operated in one business segment; however, SFAS
131 redefines segments and in the future, the Company may also be required to
disclose certain financial information about operating segments, products and
service. The Company has not determined how operating segments will be defined
for disclosure purposes or which segments will meet the quantitative
requirements for disclosure. The adoption of the standard will have no impact on
the Company's future results of operations or financial position.
2. FINANCIAL STATEMENT INFORMATION
INVENTORIES
Inventories consist of the following (in thousands):
DECEMBER 31,
1996 1997
-------------------------------------
Finished goods $4,585 $5,292
Work in process 1,242 2,956
Raw materials 423 559
-------------------------------------
$6,250 $8,807
=====================================
F-11
95
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
2. FINANCIAL STATEMENT INFORMATION (CONTINUED)
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following (in thousands):
DECEMBER 31,
1996 1997
--------------------------------------
Land $ 696 $ 696
Buildings 5,449 5,461
Equipment 4,751 6,231
Furniture and fixtures 913 697
--------------------------------------
Total 11,809 13,085
Less accumulated depreciation (3,000) (4,085)
--------------------------------------
$ 8,809 $9,000
======================================
The net book value of identifiable property, plant and equipment physically
located outside the United States, primarily in Mexico, was approximately $2.1
million and $1.6 million at December 31, 1996 and 1997.
SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid for interest is as follows (in thousands):
DECEMBER 31,
1995 1996 1997
----------------------------------------------
To stockholder $4,248 $3,709 $3,585
To bank and others 273 246 254
----------------------------------------------
$ 4,521 $3,955 $3,839
==============================================
Cash paid for income taxes during the years ended December 31, 1995, 1996 and
1997, was $29,200, $108,000 and $192,000, respectively.
F-12
96
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
3. FINANCING ARRANGEMENTS
The following summarizes the Company's long-term financing arrangements (in
thousands):
DECEMBER 31,
1996 1997
------------------------------------
LOANS PAYABLE TO STOCKHOLDER:
Senior term note payable to SBA (the Series A preferred stockholder, and a
member of Liberty, a common stockholder and warrant holder), interest payable
monthly at prime plus 1.50% (10.00% at December 31, 1997), principal payments
due quarterly of $750 in 1997 and $1,000 thereafter. The note is secured by
substantially all of the Company's assets. $16,700 $13,700
Subordinated note payable to SBA, net of unamortized discount of $756 resulting
in an effective interest rate of 12% through June 16, 2001, and prime plus
3.0% thereafter, interest payable quarterly and principal payments of $1,500
due quarterly beginning March 2001. The note is secured by substantially all
of the Company's assets. 17,028 17,244
Revolving note payable to SBA, with interest payable monthly on advances at
prime plus 1.50% (10.00 % at December 31, 1997) and on the unadvanced amount
at 0.5% per annum. At December 31, 1996, $2,000 was available for borrowing
under the agreement. The note is secured by substantially all of the
Company's assets.
- 500
LOANS PAYABLE TO BANK AND OTHERS:
Promissory note payable to a commercial bank with interest payable monthly at
the lender's reference rate plus 1.00% (9.50% at December 31, 1997),
principal payments of $9, plus interest, due monthly through November 2004.
The note is secured by a deed of trust on the Company's principal facilities
with a net book value of $3,140. 2,544 2,434
Unsecured note payable, yearly payments of $13 due through February
2006 125 112
Other 181 79
-------------------------
36,578 34,069
Less current portion (3,228) (4,703)
-------------------------
$33,350 $29,366
=========================
F-13
97
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
3. FINANCING ARRANGEMENTS (CONTINUED)
The terms of the Company's loan agreements contain certain restrictive financial
and other covenants, including minimum tangible net worth, interest coverage
ratio, limitations on lease commitments, capital expenditures and indebtedness
as well as distributions to shareholders. At December 31, 1997, the Company was
not in compliance with certain of the covenants but was able to obtain a waiver
from the respective lender. The waiver granted in 1998 extends through January
1, 1999. The Company does not anticipate satisfying the covenants in 1999;
however, as disclosed in Note 11, the loans payable to stockholder of
approximately $31 million will be repaid.
Annual maturities of long-term debt as of December 31, 1997 are as follows (in
thousands):
1998 $ 4,703
1999 4,124
2000 4,124
2001 7,824
2002 6,123
Thereafter 7,927
---------
$34,825
=========
4. COMMITMENTS
LEASES
The Company leases certain automobiles, equipment and its facilities under
noncancellable operating lease agreements expiring within one to five years. As
of December 31, 1997, annual minimum lease payments under these noncancellable
leases with initial terms of one year or more are as follows (in thousands):
1998 $ 610
1999 342
2000 172
2001 108
------
Total $1,232
======
Total rent expense charged to operations was $906,000, $695,000 and $640,000 for
the years ended December 31, 1995, 1996 and 1997, respectively.
F-14
98
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
4. COMMITMENTS (CONTINUED)
ROYALTIES
In connection with the acquisition of certain patented technology, the Company
entered into license agreements with the owners of certain patents on various
orthodontic devices and such licenses require royalty payments ranging from 3%
to 10% of the net sales, after certain adjustments. The Company charged
$560,000, $719,000 and $950,000 to operations under these agreements during the
years ended December 31, 1995, 1996 and 1997, respectively.
5. STOCKHOLDERS' EQUITY
REDEEMABLE PREFERRED STOCK
The preferred stockholders are entitled to receive preferential and cumulative
quarterly dividends at a rate of 8% per annum payable on the sum of the
liquidation value plus all accumulated and unpaid dividends thereon. Quarterly
dividends on the Series A preferred stock are payable in cash or stock. Series A
dividends paid out in cash in 1995, 1996 and 1997 were $253,000, $334,000 and
$331,000, respectively.
There were no dividends paid on Series B preferred stock in 1995, 1996 and 1997.
Dividends accrued on Series B preferred stock in 1995, 1996, 1997 were $449,000,
$484,000 and $546,000, respectively. The preferred shares do not have voting
rights.
The preferred stock is subject to mandatory redemption by the Company in the
corresponding percentage specified below and at a liquidation value of $1,000
per share plus all accrued and unpaid dividends. At December 31, 1997, the
liquidation value of the preferred stock, including accrued but unpaid dividends
of $1,712,000 is $11,015,000.
SPECIFIED
SCHEDULED REDEMPTION DATE PERCENTAGE
-------------------------------------------
January 2, 2000 33 1/3%
January 2, 2001 50%
January 2, 2002 100%
F-15
99
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
5. STOCKHOLDERS' EQUITY (CONTINUED)
The preferred stock may be redeemed in the event of a merger or sale of
substantially all the assets of the Company.
COMMON STOCK
As long as any preferred stock remains outstanding, the Company shall not,
without the prior written consent of the holders of at least 75% of the shares
of preferred stock, do any of the following:
- pay or declare dividends to the common stock shareholders
- redeem or purchase any common stock (outside the terms and
conditions of the 1994 Stock Plan)
- incur debt containing an equity feature
STOCK PLAN
In 1994, the Company adopted the 1994 Stock Plan (the "Stock Plan), under which
800 shares of the Company's common stock were reserved for future issuance.
During March 1997, the Board of Directors increased the number of shares
reserved under the Plan to 2,800. The Stock Plan provides for the grant of
incentive stock options to employees and nonstatutory stock options and stock
purchase rights to employees and consultants.
All stock purchase rights expire within thirty days or less from the date the
Company made the determination to grant the stock purchase right and grant the
Company a repurchase option exercisable upon the voluntary or involuntary
termination of employment with the Company for any reason. Once exercised, the
stock purchase right holder receives restricted stock. All restricted stock
issued under the Stock Plan has been issued at $100 per share. At December 31,
1997, restricted stock issued and outstanding under the Stock Plan totaled 655
shares. At December 31, 1997, 256 shares of restricted stock were unvested and
subject to repurchase by the Company.
All options granted under the Stock Plan expire no later than ten years from the
date of grant. The options and restricted stock generally vest and become fully
exercisable over four years with 37.5% of the shares vesting after 18 months and
the remainder ratably over the next 30 months. The exercise price of incentive
stock options to employees owning less than 10% of the voting power of all
classes of stock of the Company must be equal to at least the fair value on the
date of grant. The exercise price of nonstatutory stock options to employees
owning less than 10% of the voting power of all classes of stock of the Company
must be no less than 85% of the fair value on the date of grant. The exercise
price of incentive stock options and nonstatutory stock options to employees or
consultants owning more than 10% of the voting power of all classes of stock of
the Company must be no less than 110% of the fair value on the date of grant.
F-16
100
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
5. STOCKHOLDERS' EQUITY (CONTINUED)
The following table summarizes stock option and restricted stock activity under
the Stock Plan:
OPTIONS RESTRICTED STOCK
OUTSTANDING OUTSTANDING
------------------------------------
Balance at December 31, 1994 - -
Granted - 300
Canceled - -
------------------------
Balance at December 31, 1995 - 300
Granted - 548
Canceled - (166)
------------------------
Balance at December 31, 1996 - 682
Granted 537 -
Canceled (100) (27)
------------------------
Balance at December 31, 1997 437 655
========================
All stock options have been granted at an exercise price of $200 per share. At
December 31, 1997, no stock options were exercisable. The weighted average
remaining contractual life of the stock options outstanding at December 31, 1997
was 9.25 years.
At December 31, 1997, 1,708 shares were available for future grant under the
Stock Plan.
The weighted average fair value per share using the minimum value method of
stock options granted in 1997 is $1,952. SFAS 123 requires pro forma information
to be disclosed regarding the amount of net income and net income per common
share determined as if the Company had accounted for its employee stock options
under the fair value method prescribed by SFAS 123. For the purpose of
determining such pro forma net income, the fair value of these stock options was
estimated as of the date of grant using the minimum value method provided for in
SFAS 123 with the following assumptions for 1997: risk-free interest rate of 6%,
no annual dividends and an expected option life of five years. The effect of
applying the minimum value method of SFAS 123 to stock options granted in 1997
resulted in pro forma net income amounts that are within $10,000 or less of the
reported net income. Accordingly, no such pro forma information is presented
herein. The pro forma effect determined in 1997 may not be representative of the
pro form effect to be reported in future years.
WARRANT
In 1994, in connection with the Company's subordinated loan payable to the
stockholder, the Company granted a warrant to purchase 2,000 shares of the
Company's common stock at $100 (subject to antidilution adjustments) per share
and was determined to have a fair value of $120,000. The warrant is exercisable
at any time through June 16, 2004.
F-17
101
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
5. STOCKHOLDERS' EQUITY (CONTINUED)
DEFERRED COMPENSATION
During 1997, the Company recorded $830,000 of deferred compensation for stock
options granted, representing the difference between the option price and the
deemed fair value for financial reporting purposes. The deferred compensation is
being amortized over the vesting period, which is four years. Compensation
expense of $156,000 was recognized during the year ended December 31, 1997.
6. INCOME TAXES
The significant components of the provision (benefit) for income taxes are as
follows (in thousands):
YEARS ENDED DECEMBER 31,
1995 1996 1997
---------------------------------------------------
Current:
Federal $ 14 $ - $ 51
Foreign 68 348 504
State 6 - 157
---------------------------------------------------
88 348 712
Deferred:
Federal 245 100 829
Foreign - - -
State 72 25 70
---------------------------------------------------
317 125 899
---------------------------------------------------
$405 $473 $1,611
===================================================
The reconciliation of the federal statutory tax rate to the effective tax rate
is as follows:
YEARS ENDED DECEMBER 31,
1995 1996 1997
------------------------------------------------------
Federal statutory rate 35.0% 35.0% 35.0%
State taxes, net of federal benefit 3.7 0.2 2.3
Permanent differences (non-deductible expenses
and U.S. taxes on foreign distributions) 5.1 7.2 1.4
Reduction in valuation allowance on deferred tax
assets (17.3) (6.6) -
Tax credits - (1.5) (1.0)
Foreign earnings at less than U.S.
statutory rate - (10.4) -
Other 4.8 3.7 0.9
------------------------------------------------------
31.3% 27.6% 38.6%
======================================================
F-18
102
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
6. INCOME TAXES (CONTINUED)
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax assets and liabilities are shown below (in
thousands):
DECEMBER 31,
1996 1997
-----------------------------------
Deferred tax assets (liabilities):
Reserves and allowances $1,009 $1,316
U.S. net operating loss carryforwards 1,695 553
Difference in amortization periods for goodwill (61) (323)
Excess book depreciation (51) (102)
Tax credit carryforwards 163 228
Deferred compensation - 107
Other 63 140
-----------------------------------
Total 2,818 1,919
Valuation allowance (81) (81)
-----------------------------------
Deferred tax assets, net $2,737 $1,838
===================================
At December 31, 1997, the Company had a federal net operating loss carryforward
of $1,570,000. The federal carryforward will begin expiring in 2009. The Company
also had federal research and development tax credit carryforwards of $61,000,
and federal and state alternative minimum tax credits of $82,000 and $4,000,
respectively. The federal research and development tax credits will begin to
expire in 2011.
7. EMPLOYEE BENEFIT PLAN
Beginning in 1995, the Company sponsors a Defined Contribution Plan (the "Plan")
which covers substantially all domestic employees that meet certain age
requirements. Employees may contribute up to 10% of their compensation per year
(subject to a maximum limit imposed by federal tax law). The Company may make
contributions each year at the discretion of the Board of Directors. The
contributions charged to operations totaled $194,000, $183,000 and $201,000, for
the years ended December 31, 1995, 1996 and 1997, respectively.
F-19
103
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
8. GEOGRAPHIC INFORMATION
The Company operates in a single industry segment: the design, manufacture and
distribution of orthodontic appliances. In the schedule below (in thousands),
net sales, income before provision for taxes and total assets are reported based
on the location of the Company's facilities. Intercompany transfers are made at
arm's length between the various geographic areas.
YEARS ENDED DECEMBER 31,
1995 1996 1997
--------------------------------------------
Net sales:
United States:
Sales to unaffiliated domestic customers $25,378 $26,688 $28,420
Export sales 11,200 11,728 14,395
Interarea transfers (2,455) (3,060) (3,709)
--------------------------------------------
34,123 35,356 39,106
Europe:
Sales to unaffiliated domestic customers 10,614 11,200 10,346
Eliminations (3,085) (3,063) (4,196)
--------------------------------------------
Consolidated net sales $41,652 $43,493 $45,256
============================================
Income before provision for income taxes:
United States and Mexico $ 465 $ 660 $ 3,114
Europe 761 990 992
Corporate expenses and eliminations 66 62 63
--------------------------------------------
Consolidated income before income taxes $ 1,292 $ 1,712 $ 4,169
============================================
Total assets:
United States and Mexico $50,191 $47,257 $47,712
Europe 1,865 2,528 3,021
Eliminations (2,760) (2,305) (2,242)
--------------------------------------------
Consolidated total assets $49,296 $47,480 $48,491
============================================
9. SHARES USED IN PER COMMON SHARE COMPUTATIONS
The following table details the shares used for the basic and diluted income per
common share computations:
YEARS ENDED DECEMBER 31,
1995 1996 1997
------------------------------------------------------
Weighted-average common shares 7,071 7,250 7,328
------------------------------------------------------
Shares used for the basic income per common share 7,071 7,250 7,328
Effect of dilutive securities:
Nonvested common stock - - 417
Warrants - - 1,953
Common stock options - - 222
------------------------------------------------------
- - 2,592
Shares used for the diluted income per common share
7,071 7,250 9,920
======================================================
F-20
104
LRS Acquisition Corp.
Notes to Consolidated Financial Statements (continued)
10. LITIGATION
The Company is subject to legal proceedings and claims which arise in the
ordinary course of its business. It is management's opinion that the likely
outcome of any such proceedings and claims would not have a material adverse
effect on the Company's future results of operations or financial position.
11. PROPOSED REORGANIZATION
On January 23, 1998, the Board of Directors entered into an Agreement and Plan
of Reorganization with Sybron International Corporation (Sybron) whereby Sybron
will acquire all of the outstanding shares of the Company's common and preferred
stock in exchange for its common stock. In addition, the loans payable to the
SBA will be repaid with cash. If the loans were repaid as of December 31, 1997,
the unamortized debt issue costs and debt discount totaling $1,205,000
(approximately $723,000, net of tax) would have been written-off as an
extraordinary item. The transaction is subject to the approval of the Company's
stockholders.
F-21
105
APPENDIX A
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
SYBRON INTERNATIONAL CORPORATION,
NORMANDY ACQUISITION CO.,
LRS ACQUISITION CORP.
AND
LIBERTY PARTNERS HOLDINGS 5, L.L.C.
DATED AS OF JANUARY 23, 1998
A-1
106
TABLE OF CONTENTS
RECITALS A-8
ARTICLE I
DEFINITIONS
1.1 AC A-8
1.2 ACIE A-8
1.3 AC Europe A-8
1.4 AC GmbH A-8
1.5 AC MEXICO A-8
1.6 AC Netherlands A-8
1.7 Accounts A-8
1.8 ACQUISITION A-8
1.9 Affiliate A-9
1.10 Affiliate Letter A-9
1.11 Agreement A-9
1.12 Average Sybron Stock Price A-9
1.13 Buildings A-9
1.14 Business A-9
1.15 CERCLA A-9
1.16 Certain Indebtedness A-9
1.17 Certificate of Merger A-9
1.18 Closing A-9
1.19 Closing Balance Sheet A-9
1.20 Closing Date A-9
1.21 Closing Merger Price A-9
1.22 Code A-9
1.23 Common Equity Merger Price A-10
1.24 Confidentiality Agreement A-10
1.25 Contract A-10
1.26 Damages A-10
1.27 DGCL A-10
1.28 Disclosure Schedule A-10
1.29 Disclosure Schedule Change A-10
1.30 Dissenting Shares A-10
1.31 Distributed Shares A-10
1.32 EBITDA A-10
1.33 Effective Time of Merger A-10
1.34 Employee Benefit Plans A-10
1.35 Environmental Claim A-10
1.36 Environmental Laws A-10
1.37 Environmental Release A-11
1.38 Equipment A-11
1.39 ERISA A-11
1.40 Escrow Account A-11
1.41 Escrow Agent A-11
1.42 Escrow Agreement A-11
1.43 Exchange Agent A-11
1.44 Exchange Agreement A-11
A-2
107
1.45 Exchange Fund A-11
1.46 Existing Contracts A-11
1.47 Existing Indebtedness A-11
1.48 Existing Insurance Policies A-11
1.49 Existing Investments A-11
1.50 Existing Liens A-12
1.51 Existing Litigation A-12
1.52 Existing Plans A-12
1.53 Existing Real Estate A-12
1.54 Expenses A-12
1.55 FDA Laws A-12
1.56 Financial Information A-12
1.57 GAAP A-12
1.58 Gross Merger Price A-12
1.59 Hazardous Materials A-12
1.60 Holdback Participants A-12
1.61 Holdback Shares A-12
1.62 HSR Act A-12
1.63 Indebtedness A-12
1.64 Intangible Assets A-13
1.65 Inventory A-13
1.66 Investment A-13
1.67 IRS A-13
1.68 Knowledge of LRS A-13
1.70 LRS Certificates A-13
1.71 LRS Closing Certificate A-13
1.72 LRS Common Stock A-13
1.73 LRS Companies A-13
1.74 LRS Counsel Opinions A-13
1.75 LRS Material Adverse Effect A-13
1.76 LRS October Balance Sheet A-14
1.77 LRS Options A-14
1.78 LRS Optionholders A-14
1.79 LRS Preferred Stock A-14
1.80 LRS Representatives A-14
1.81 LRS Special Meeting A-14
1.82 LRS Stockholders A-14
1.83 LRS Warrant A-14
1.84 LRS Warrantholder A-14
1.85 Law A-14
1.86 Lien A-14
1.87 Merger A-14
1.88 Net Equity Merger Price A-14
1.89 Nonvested Restricted Share Value A-14
1.90 Nonvested Restricted Shares A-14
1.91 Option Value A-15
1.92 Permits A-15
1.93 Permitted Liens A-15
1.94 Person A-15
1.95 Preferred Stock Value A-15
1.96 Product Liability Matters A-15
1.97 Product Warranty Claims A-15
1.98 Proxy Statement A-15
1.99 Records A-15
A-3
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1.100 Registration Rights Agreement A-15
1.101 Registration Statement A-15
1.102 SEC A-15
1.103 Securities Act A-15
1.104 Subsidiary A-16
1.105 Surviving Corporation A-16
1.106 SYBRON A-16
1.107 Sybron Closing Certificate A-16
1.108 Sybron Counsel Opinion A-16
1.109 Sybron Stock A-16
1.110 Sybron SEC Reports A-16
1.111 Tax Opinion Letter A-16
1.112 Total Shares Deemed Outstanding A-16
1.113 Warrant Price A-16
1.114 Year 2000 Compliant A-16
ARTICLE II
THE MERGER; OTHER AGREEMENTS
2.1 The Merger A-17
2.2 Effective Time of Merger A-17
2.3 Certificate of Incorporation of Surviving Corporation A-17
2.4 Bylaws of Surviving Corporation A-17
2.5 Directors and Officers of Surviving Corporation A-17
2.6 Conversion of LRS Common Stock, LRS Preferred Stock, and
ACQUISITION Common Stock A-17
2.7 LRS Options; LRS Warrant A-18
2.8 Exchange of LRS Certificates A-18
2.9 Sybron Stock Price A-20
2.10 Stock Transfer Books A-20
2.11 Reorganization; Pooling A-20
2.12 Dissenters' Rights A-20
ARTICLE III
OTHER AGREEMENTS
3.1 Gross Merger Price Adjustments A-21
3.2 Registration Statement A-21
3.3 Approval of LRS Stockholders and LRS Optionholders A-21
3.4 Access A-22
3.5 Disclosure Schedule A-22
3.6 Duties Concerning Representations A-23
3.7 Deliveries of Information; Consultation A-23
3.8 Affiliates; Accounting and Tax Treatment A-23
3.9 Letters of Accountants A-23
3.10 Legal Conditions to Merger A-23
3.11 Stock Exchange Listing A-24
3.12 Public Announcements A-24
3.13 Expenses A-24
3.14 HSR Act A-24
3.15 Other Payments at Closing A-24
3.16 OFP Agreement A-25
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF LRS
4.1 Organization; Business A-25
4.2 Capitalization A-25
4.3 Authorization; Enforceability A-26
4.4 No Violation or Conflict A-27
4.5 Assets A-27
4.6 Litigation A-27
4.7 Financial Information; Books and Records A-27
4.8 Absence of Certain Changes A-28
4.9 Buildings A-29
4.10 Existing Contracts A-30
4.11 Performance of Contracts; Business Relationships A-30
4.12 Existing Insurance Policies A-31
4.13 Employee Benefit Plans A-31
4.14 No Violation of Law A-32
4.15 Brokers A-32
4.16 Taxes A-32
4.17 Intangible Assets A-33
4.18 Product Matters A-33
4.19 Investments A-34
4.20 Labor Matters A-34
4.21 Indebtedness A-34
4.22 Permits A-34
4.23 Disclosure A-34
4.24 Information Supplied A-34
4.25 Vote Required A-35
4.26 Accounting Matters A-35
4.27 Environmental Matters A-35
4.28 Accounts A-36
4.29 Product Specifications A-36
4.30 Distributors; Manufacturer's Representatives A-36
4.31 Transactions with Related Parties A-37
4.32 Year 2000 Compliance A-37
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
SYBRON AND ACQUISITION
5.1 Organization A-37
5.2 Capitalization A-37
5.3 Authorization; Enforceability A-38
5.4 No Violation or Conflict A-38
5.5 Litigation A-38
5.6 SYBRON SEC Reports A-38
5.7 Disclosure A-39
5.8 Information Supplied A-39
5.9 Brokers A-39
5.10 No Adverse Change A-39
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ARTICLE VI
CONDUCT OF BUSINESS BY THE LRS COMPANIES
PENDING THE MERGER
6.1 Carry on in Ordinary Course A-39
6.2 Use of Assets A-39
6.3 No Default A-39
6.4 Existing Insurance Policies A-39
6.5 Employment Matters A-39
6.6 Contracts A-40
6.7 Indebtedness; Investments A-40
6.8 Preservation of Relationships A-40
6.9 Compliance with Laws A-40
6.10 Taxes A-40
6.11 Amendments A-40
6.12 Dividends; Redemptions; Issuance of Stock A-40
ARTICLE VII
CERTAIN MATTERS PENDING THE CLOSING
7.1 Consents and Approvals A-40
7.2 Exclusive Dealing A-40
7.3 Cooperation A-40
7.4 Exchange Agreement A-41
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
SYBRON AND ACQUISITION
8.1 Compliance with Agreement A-41
8.2 Proceedings and Instruments Satisfactory A-41
8.3 No Litigation A-41
8.4 Representations and Warranties of LRS A-41
8.5 No LRS Material Adverse Effect A-41
8.6 Approval of LRS Stockholders; Certificate of Merger A-41
8.7 Deliveries at Closing A-42
8.8 Other Documents A-42
8.9 Certain Approvals A-42
8.10 Listing A-43
8.11 Closing Balance Sheet A-43
8.12 Accountant Letters A-43
8.13 Pooling Treatment A-43
8.14 Fractional Shares A-43
8.15 Consents A-43
8.16 Other Conditions A-43
ARTICLE IX
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF LRS
9.1 Compliance with Agreement A-44
9.2 Proceedings and Instruments Satisfactory A-44
9.3 No Litigation A-44
9.4 Representations and Warranties of SYBRON and ACQUISITION A-44
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9.5 Approval of LRS Stockholders; Certificate of Merger A-44
9.6 Deliveries at Closing A-44
9.7 Other Documents A-44
9.8 Certain Approvals A-45
9.9 Tax Opinion A-45
9.10 Accountant Letters A-45
9.11 No Material Adverse Change A-45
9.12 Listing A-45
9.13 Closing Balance Sheet A-45
ARTICLE X
TERMINATION; INDEMNIFICATION; MISCELLANEOUS
10.1 Termination A-45
10.2 Rights on Termination; Waiver A-46
10.3 Indemnity by LRS A-46
10.4 Indemnity by SYBRON A-48
10.5 Exclusivity and Survival of Representations and Warranties A-49
10.6 Entire Agreement; Amendment A-49
10.7 Governing Law A-49
10.8 Assignment A-49
10.9 Notices A-49
10.10 Counterparts; Headings A-50
10.11 Interpretation A-50
10.12 Severability A-50
10.13 Specific Performance A-50
10.14 No Reliance A-50
10.15 Further Assurances A-51
10.16 LRS Representative A-51
10.17 Directors' and Officers' Liability Coverage A-51
10.18 Tax Matters A-51
10.19 Severance Matters A-52
SIGNATURES A-53
CERTIFICATIONS A-54
EXHIBITS
1 Form of Affiliate Letter A-55
2 Form of Certificate of Merger A-58
3 Form of Escrow Agreement A-59
4 Form of Exchange Agreement A-70
5 Form of LRS Closing Certificate A-77
6 Forms of LRS Counsel Opinions A-79
7 Form of Tax Opinion Letter A-91
8 Form of Registration Rights Agreement A-101
9 Form of Sybron Closing Certificate A-109
10 Form of Sybron Counsel Opinion A-110
11 Other Payments A-113
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION is made as of this 23rd
day of January, 1998 by and among Sybron International Corporation ("SYBRON"),
Normandy Acquisition Co.("ACQUISITION"), LRS Acquisition Corp. ("LRS"), and
Liberty Partners Holdings 5, L.L.C. (the "LRS Warrantholder").
RECITALS
WHEREAS, LRS, through its wholly owned subsidiaries, "A" Company
Orthodontics and its affiliates, is engaged in the ownership and operation of
its business, which comprises the design, manufacture, marketing, and
distribution of orthodontic appliances and products; and
WHEREAS, ACQUISITION is a wholly owned subsidiary of SYBRON; and
WHEREAS, SYBRON desires to acquire LRS through the merger of
ACQUISITION into LRS, whereupon all of the outstanding shares of capital stock
of LRS will be converted into shares of SYBRON common stock, and through the
other transactions described herein.
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 that:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the
meanings specified:
1.1 "AC" shall mean "A" Company Orthodontics, a wholly owned subsidiary
of LRS.
1.2 "ACIE" shall mean A Company International Export, Inc., a wholly
owned subsidiary of LRS.
1.3 "AC Europe" shall mean "A" Company Europe B.V., a wholly owned
subsidiary of AC Netherlands.
1.4 "AC GmbH" shall mean "A" Company GmbH, a wholly owned subsidiary of
AC.
1.5 "AC MEXICO" shall mean Maquiladora ACI-MEX S.A. de C.V., which is,
but for one director's qualifying share, a wholly owned subsidiary of AC.
1.6 "AC Netherlands" shall mean "A" Orthodontics BV, a wholly-owned
subsidiary of AC.
1.7 "Accounts" shall mean all accounts receivable, notes and associated
rights owned by any of the LRS Companies.
1.8 "ACQUISITION" shall mean Normandy Acquisition Co., a Delaware
corporation and a wholly owned subsidiary of SYBRON.
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1.9 "Affiliate" shall mean a Person who is an affiliate of LRS for
purposes of Rule 145 under the Securities Act, as identified in the Disclosure
Schedule.
1.10 "Affiliate Letter" shall mean a letter from each Affiliate in
substantially the form of EXHIBIT 1 attached to this Agreement.
1.11 "Agreement" shall mean this Agreement and Plan of Reorganization,
together with the Exhibits attached hereto and together with the Disclosure
Schedule, as the same may be amended from time to time in accordance with the
terms hereof.
1.12 "Average Sybron Stock Price" shall mean the average of the closing
sale price per share of SYBRON Common Stock as reported on the New York Stock
Exchange - Composite Transactions on each of the thirty (30) consecutive trading
days ending with the fifth trading day prior to the Closing Date, as adjusted to
reflect any stock split described in Section 5.2(a) hereof.
1.13 "Buildings" shall mean all buildings, fixtures, structures and
improvements used by any of the LRS Companies and located on the Existing Real
Estate.
1.14 "Business" shall mean the design, manufacture, marketing, and
distribution of orthodontic appliances and products by the LRS Companies as
presently conducted.
1.15 "CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.A. ss. 9601, et
seq., and the rules, regulations and orders promulgated thereunder.
1.16 "Certain Indebtedness" shall mean the Indebtedness of the LRS
Companies to the State Board of Administration of Florida, plus accrued and
unpaid interest thereon and any prepayment penalties and/or fees related
thereto.
1.17 "Certificate of Merger" shall mean the Certificate of Merger
substantially in the form of EXHIBIT 2 to this Agreement.
1.18 "Closing" shall mean the conference to be held at 10:00 A.M.,
Central Time, on the Closing Date at the offices of Quarles & Brady, Milwaukee,
Wisconsin, or such other time and place as the parties may mutually agree to in
writing, at which the transactions contemplated by this Agreement shall be
consummated.
1.19 "Closing Balance Sheet" shall mean a consolidated balance sheet of
LRS prepared in accordance with GAAP (except as otherwise provided in Section
3.1(b) hereof), as described in Section 3.1(b) hereof.
1.20 "Closing Date" shall mean the later of:
(a) March 15, 1998; or
(b) the date that is five (5) business days after all of the
conditions to Closing set forth in Articles VIII and IX of this Agreement have
been satisfied or waived, other than those conditions to be accomplished at
Closing; or
(c) such other date as SYBRON and LRS may mutually agree to in
writing.
1.21 "Closing Merger Price" shall mean the sum, calculated as of the
Effective Time of Merger, of the Gross Merger Price, plus all cash and cash
equivalents of the LRS Companies, less the amount of the Certain Indebtedness.
1.22 "Code" shall mean the Internal Revenue Code of 1986, as the same
may be in effect from time to time.
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1.23 "Common Equity Merger Price" shall mean, for each share of LRS
Common Stock (other than Nonvested Restricted Shares), the Net Equity Merger
Price divided by the Total Shares Deemed Outstanding.
1.24 "Confidentiality Agreement" shall mean the letter agreement
between SYBRON and AC dated June 23, 1997 as modified by subsequent
correspondence between the parties and Section 3.12 of this Agreement.
1.25 "Contract" shall mean any contract, agreement, or commitment,
whether written or oral.
1.26 "Damages" shall have the meaning set forth in Section 10.3 hereof.
1.27 "DGCL" shall mean the Delaware General Corporation Law, as in
effect on the date of this Agreement and amended from time to time hereafter.
1.28 "Disclosure Schedule" shall mean the Disclosure Schedule dated the
date hereof delivered by LRS to SYBRON upon execution of this Agreement, as the
same may be updated prior to Closing as described in Section 3.5 hereof.
1.29 "Disclosure Schedule Change" shall have the meaning set forth in
Section 3.5(b) of this Agreement.
1.30 "Dissenting Shares" shall have the meaning set forth in Section
2.12 of this Agreement.
1.31 "Distributed Shares" shall have the meaning set forth in Section
2.8(b)(ii) of this Agreement.
1.32 "EBITDA" shall mean LRS's consolidated net income (computed in
accordance with GAAP, except that adjustments pertaining to periods other than
the calendar year ended December 31, 1997, Expenses, and all nonoperating,
nonrecurring and extraordinary gains, losses and expenses (including those set
forth in Section 1.32 of the Disclosure Schedule as exceptions to the EBITDA
calculation) shall not be charged or credited in the calculation of LRS's
consolidated net income) before interest, income taxes, depreciation, and
amortization.
1.33 "Effective Time of Merger" shall have the meaning set forth in
Section 2.2 of this Agreement.
1.34 "Employee Benefit Plans" shall mean any pension plan, profit
sharing plan, bonus plan, incentive compensation plan, stock ownership plan,
stock purchase plan, stock option plan, stock appreciation plan, employee
benefit plan, employee benefit policy, retirement plan, fringe benefit program,
insurance plan, severance plan, disability plan, health care plan, sick leave
plan, death benefit plan, or any other plan or program to provide retirement
income, fringe benefits or other benefits to former or current employees of any
of the LRS Companies.
1.35 "Environmental Claim" shall mean any and all written
administrative, regulatory, judicial, or third party actions, suits, demands,
demand letters, directives, claims, Liens, investigations, or written notices of
noncompliance or violation by any Person alleging penalties, fines or
forfeitures, damage to property, personal or bodily injury, or damage, injury or
other adverse effect on the environment, or potential liability (including,
without limitation, potential liability for enforcement, investigatory costs,
cleanup costs, governmental response costs, removal costs, remedial costs,
natural resources damages, property damages, personal injuries, or penalties)
arising out of, based on or resulting from: (i) the presence, or Environmental
Release or threatened Environmental Release, of any Hazardous Materials from or
at any location, whether or not owned by any LRS Company; or (ii) environmental
aspects of the transportation, storage, treatment or disposal of Hazardous
Materials in connection with the operation of the Business; or (iii)
circumstances forming the basis of any violation or alleged violation of any
Environmental Law; or (iv) any and all claims by any Person seeking damages,
contribution, indemnification, cost, recovery, compensation or injunctive relief
resulting from the presence, Environmental Release or threatened Environmental
Release of any Hazardous Materials.
1.36 "Environmental Laws" shall mean all Laws (including, without
limitation, CERCLA) and regulatory policies (having the force or effect of Law)
relating to the protection of human health or the environment
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(including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), including, without limitation, Laws relating to
Environmental Releases or threatened Environmental Releases of Hazardous
Materials, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials;
including without limitation: (i) the Resource Conservation and Recovery Act, 42
U.S.C.A. ss. 6901, et seq., and the rules, regulations and orders promulgated
thereunder; (ii) CERCLA; (iii) the Clean Water Act, 33 U.S.C. ss. 1251, et seq.,
and the rules, regulations and orders promulgated thereunder; (iv) the Clean Air
Act, 42 U.S.C. ss. 7401 et seq., and the rules, regulations and orders
promulgated thereunder; (v) the Toxic Substances Control Act, 15 U.S.C. ss.
2601, et seq., and the rules, regulations and orders promulgated thereunder;
(vi) the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1801, et seq.,
and the rules, regulations and orders promulgated thereunder; (vii) the
Occupational Safety and Health Act, 29 U.S.C. ss. 651 et seq., and the rules,
regulations, and orders promulgated thereunder; and (viii) any other applicable
U.S. federal, state, local, or other statutes or Laws, and the rules,
regulations, and orders promulgated thereunder; in each case as such Laws and
regulatory policies were enacted or adopted prior to and in effect on the
Closing Date.
1.37 "Environmental Release" shall mean any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the atmosphere, soil, surface water, sewer system, groundwater or
property.
1.38 "Equipment" shall mean all boilers, computers, construction in
progress, dies, equipment, fixtures, furniture, furnishings, jigs, machine
tools, molds, motor vehicles, office equipment, parts, patterns, tooling and,
except for Inventory, all other items of tangible personal property owned by any
of the LRS Companies which are either presently used, or are used on the Closing
Date, by any of the LRS Companies in the conduct of its business.
1.39 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be in effect from time to time, and the regulations
promulgated thereunder.
1.40 "Escrow Account" shall mean the escrow account established
pursuant to the Escrow Agreement into which shares of Sybron Stock will be
deposited in the manner described in Section 2.8(f) hereof.
1.41 "Escrow Agent" shall mean State Street Bank and Trust Company.
1.42 "Escrow Agreement" shall mean the Escrow Agreement among SYBRON,
the LRS Representatives, and the Escrow Agent in substantially the form of
EXHIBIT 3 attached hereto.
1.43 "Exchange Agent" shall mean BankBoston, N.A.
1.44 "Exchange Agreement" shall mean the Exchange Agreement among
SYBRON, the LRS Representatives, and the Exchange Agent in substantially the
form of EXHIBIT 4 attached hereto.
1.45 "Exchange Fund" shall have the meaning set forth in Section 2.8(a)
of this Agreement.
1.46 "Existing Contracts" shall mean those Contracts to which any of
the LRS Companies is a party which are listed in the Disclosure Schedule.
1.47 "Existing Indebtedness" shall mean all Indebtedness of each of the
LRS Companies, all of which is listed in the Disclosure Schedule.
1.48 "Existing Insurance Policies" shall mean all of the insurance
policies currently in effect and owned by any of the LRS Companies, all of which
are listed in the Disclosure Schedule.
1.49 "Existing Investments" shall mean all Investments of each of the
LRS Companies, all of which are listed in the Disclosure Schedule.
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1.50 "Existing Liens" shall mean all Liens attaching to any of the
assets and properties of any of the LRS Companies on the date of this Agreement,
all of which are listed in the Disclosure Schedule.
1.51 "Existing Litigation" shall mean all pending or, to the Knowledge
of LRS, threatened lawsuits, tax audit inquiries, workers compensation claims,
litigation, arbitration proceedings, governmental proceedings, and legal actions
of any kind against any of the LRS Companies, all of which are listed and
briefly described in the Disclosure Schedule.
1.52 "Existing Plans" shall mean all Employee Benefit Plans of each of
the LRS Companies, all of which are listed in the Disclosure Schedule.
1.53 "Existing Real Estate" shall mean those interests in real property
described in the Disclosure Schedule.
1.54 "Expenses" shall have the definition specified in Section 3.13 of
this Agreement.
1.55 "FDA Laws" shall mean all Laws relating to the use, manufacture,
packaging, licensing, labeling, distribution, or sale of any device, food, drug,
cosmetic or household product or material.
1.56 "Financial Information" shall mean (a) the audited consolidated
and unaudited consolidating financial statements of LRS for the fiscal years
ended December 31, 1995 and 1996 and the unaudited consolidated and
consolidating financial statements of LRS for the nine-month interim periods
ended September 30, 1997 and 1996, and the ten-month interim period ended
October 31, 1997; (b) upon delivery, the Closing Balance Sheet and the LRS
unaudited (or, if available by Closing, audited) consolidated and consolidating
financial statements for the fiscal year ended December 31, 1997; (c) the books
and records of account of the LRS Companies; and (d) all other financial
information relating to the financial condition of the Business delivered or to
be delivered by LRS to SYBRON pursuant to this Agreement.
1.57 "GAAP" shall mean United States generally accepted accounting
principles, applied on a basis consistent with past practices used in the
preparation of LRS's audited historical financial statements.
1.58 "Gross Merger Price" shall mean One Hundred Twenty Million Dollars
($120,000,000) less the amount of the payments, to the extent paid, as set forth
on EXHIBIT 11 hereto, subject to adjustment as of the Closing pursuant to
Sections 2.7(a), 3.1(a) and (b), and after the Closing pursuant to Sections 10.3
and 10.4 of this Agreement.
1.59 "Hazardous Materials" shall mean any material, substance,
chemical, waste, hazardous waste, pollutant, contaminant, or hazardous or toxic
substance as to which liabilities, restrictions or standards of conduct are
imposed pursuant to any Environmental Laws, including, without limitation,
asbestos, formaldehyde, polychlorinated biphenyls, radioactive materials, waste
oil and other petroleum products, and any other such substances which constitute
a nuisance or hazard to the environment or to the public health, safety, or
welfare.
1.60 "Holdback Participants" shall mean those Persons identified in
Section 1.60 of the Disclosure Schedule as Holdback Participants for purposes of
Section 2.8(b)(ii) h) hereof.
1.61 "Holdback Shares" shall have the meaning set forth in Section
2.8(b)(ii) of this Agreement.
1.62 "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as the same may be in effect from time to time.
1.63 "Indebtedness" shall mean any liability or obligation of any of
the LRS Companies, whether primary or secondary, or absolute or contingent:
(a) for borrowed money; or
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(b) evidenced by notes, bonds, debentures or similar instruments;
or
(c) secured by Liens on any assets of any of the LRS Companies.
1.64 "Intangible Assets" shall mean all of the intangible assets owned
or used by any LRS Company in the Business, including but not limited to trade
secrets, know-how, operating methods and procedures, proprietary information,
processes, technical knowledge, formulae, advertising formats, logos,
trademarks, trade designations, service marks, trade names, patents, copyrights,
applications for any of the foregoing, goodwill, advertising and promotional
rights, franchise rights, customer lists, telephone number(s), and related
rights.
1.65 "Inventory" shall mean all of the LRS Companies' inventories of
raw materials and supplies, spare parts, work in process, and finished goods.
1.66 "Investment" by any of the LRS Companies shall mean:
(a) any transfer or delivery of cash, stock or other property or
thing of value in exchange for indebtedness, stock or any other security of
another Person;
(b) any loan or advance to, or capital contribution in, any other
Person;
(c) any guaranty or assumption of any liability or obligation of
any other Person; and
(d) any investments in any fixed property or fixed assets other
than fixed properties and fixed assets acquired and used in the ordinary course
of the business.
1.67 "IRS" shall mean the Internal Revenue Service.
1.68 "Knowledge of LRS" shall mean (a) the actual knowledge of Michael
Kluger and Robert Stockman, and (b) the actual knowledge of any one or more of
the following named Persons following a reasonable inquiry made by such Persons
in connection with the transactions contemplated by this Agreement or knowledge
that any one or more of the following Persons should have acquired after
reasonable inquiry if reasonable inquiry by such Persons is not conducted:
Gordie Nye, David Milner and Andrew Futey.
1.69 "LRS" shall mean LRS Acquisition Corp., a Delaware corporation.
1.70 "LRS Certificates" shall have the meaning set forth in Section
2.8(b) of this Agreement.
1.71 "LRS Closing Certificate" shall mean the Closing Certificate of
LRS in substantially the form of EXHIBIT 5 attached to this Agreement.
1.72 "LRS Common Stock" shall mean all of the issued and outstanding
shares of common stock, par value $.01 per share, of LRS, including the
Nonvested Restricted Shares.
1.73 "LRS Companies" shall mean LRS, AC, ACIE, AC Europe, AC GmbH, AC
Netherlands, and AC Mexico.
1.74 "LRS Counsel Opinions" shall mean the opinions to SYBRON of
Kirkland & Ellis and other counsel (reasonably acceptable to Sybron) in
substantially the forms attached to this Agreement as EXHIBIT 6.
1.75 "LRS Material Adverse Effect" shall mean any event, condition or
fact which is, or reasonably may be expected to be, materially adverse to the
financial condition, properties, business or results of operations of the LRS
Companies, taken as a whole.
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1.76 "LRS October Balance Sheet" shall mean the unaudited consolidated
balance sheet of LRS as of October 31, 1997.
1.77 "LRS Options" shall mean all of the issued and outstanding options
for LRS Common Stock granted under the LRS Acquisition Corp. 1994 Stock Plan, as
described in the Disclosure Schedule.
1.78 "LRS Optionholders" shall mean all Persons owning LRS Options on
the relevant date.
1.79 "LRS Preferred Stock" shall mean all of the issued and outstanding
shares of LRS Series A and Series B Preferred Stock, par value $1.00 per share.
1.80 "LRS Representatives" shall mean the Persons serving as the
representatives and agents of the LRS Stockholders, the LRS Optionholders and
the LRS Warrantholder pursuant to Section 10.16 hereto.
1.81 "LRS Special Meeting" shall mean a special meeting of the LRS
Stockholders for the purpose of approving the Merger, this Agreement and the
transactions contemplated by this Agreement and for such other purposes as may
be necessary or desirable.
1.82 "LRS Stockholders" shall mean all Persons owning shares of LRS
Common Stock or LRS Preferred Stock on the relevant date.
1.83 "LRS Warrant" shall mean the LRS Acquisition Corp. Common Stock
Purchase Warrant dated June 16, 1994 issued to the LRS Warrantholder.
1.84 "LRS Warrantholder" shall mean the holder of the LRS Warrant,
which is Liberty Partners Holdings 5, L.L.C.
1.85 "Law" shall mean any common law or federal, state, local, or other
law, or any governmental rule, regulation, or requirement of any kind having the
force or effect of Law, including any orders promulgated thereunder and any
final orders, decrees, policies, consents or judgments of any regulatory
agencies, courts or other Persons.
1.86 "Lien" shall mean, with respect to any asset: (a) any mortgage,
pledge, lien, charge, restriction, reservation, easement, covenant, lease,
encroachment, title defect, imposition, security interest or other encumbrance
of any kind whether imposed by Law, by contract or otherwise; and (b) the
interest of a vendor or lessor under any conditional sale agreement, financing
lease or other title retention agreement relating to such asset.
1.87 "Merger" shall mean the merger of ACQUISITION with and into LRS
pursuant to this Agreement.
1.88 "Net Equity Merger Price" shall mean an amount equal to the excess
of (a) the sum of (i) the Closing Merger Price, plus (ii) the exercise price of
the LRS Warrant, plus (iii) 90% of the aggregate exercise price of all LRS
Options (except for those which have not consented to the transaction), minus
(iv) 10% of the aggregate original purchase prices for the Nonvested Restricted
Shares, over (b) the aggregate amount of the Preferred Stock Value for all of
the LRS Preferred Stock.
1.89 "Nonvested Restricted Share Value" shall mean the fair market
value of each Nonvested Restricted Share as of the Effective Time of Merger
which shall be an amount equal to the sum of (a) the Net Equity Merger Price
multiplied by a fraction, the numerator of which shall be 0.72 and the
denominator of which shall be the Total Shares Deemed Outstanding, plus (b) 10%
of the original purchase price for such Nonvested Restricted Share.
1.90 "Nonvested Restricted Shares" shall mean the shares of LRS Common
Stock issued pursuant to Section 11 of the LRS Acquisition Corp. 1994 Stock Plan
that have not vested as of the Closing Date.
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1.91 "Option Value" shall mean the fair market value of each LRS Option
as of the Effective Time of Merger calculated by multiplying (a) the excess of
(i) an amount equal to the Net Equity Merger Price multiplied by a fraction, the
numerator of which shall be 0.72 and the denominator of which shall be the Total
Shares Deemed Outstanding, over (ii) 90% of the per share exercise price of such
LRS Option, by (b) the number of shares of LRS Common Stock issuable upon
exercise of such LRS Option (assuming 100% vesting).
1.92 "Permits" shall mean those material permits, licenses, and
governmental authorizations of the LRS Companies required for the conduct of the
Business as presently conducted, all of which are listed in the Disclosure
Schedule.
1.93 "Permitted Liens" shall mean: (i) imperfections of title, if any,
none of which individually or in the aggregate materially detracts from the
value or impairs the use of any asset subject thereto; (ii) lessor's,
materialmen's, mechanics', warehousemen's, carriers', repairmen's, or other like
liens arising in the ordinary course of Business for amounts not yet due and
which are not individually or in the aggregate material to the assets or
properties of the relevant LRS Company; (iii) liens for current taxes not yet
due; (iv) statutory liens incurred or deposits made in the ordinary course of
Business in connection with workers' compensation, unemployment insurance or
other types of social security; and (v) those of the Existing Liens which are
expressly noted as Permitted Liens in the Disclosure Schedule.
1.94 "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.
1.95 "Preferred Stock Value" shall mean, for each share of LRS
Preferred Stock, $1,000 per share plus all accrued and unpaid dividends thereon
(whether or not they have been declared) as of the Effective Time of Merger.
1.96 "Product Liability Matters" shall mean any and all liabilities or
obligations or damages of any kind for death, disease, or injury to persons,
businesses, or property relating to products produced, distributed, sold, or
shipped by any LRS Company prior to the Effective Time of Merger.
1.97 "Product Warranty Claims" shall mean all claims for breach of
express or implied warranties (other than Product Liability Matters) for any
products produced, distributed, sold, or shipped by any LRS Company prior to the
Effective Time of Merger.
1.98 "Proxy Statement" shall mean the proxy statement of LRS to be
distributed to the LRS Stockholders in connection with the LRS Special Meeting
and the approval of the Merger by the LRS Stockholders, which shall also
constitute the prospectus of SYBRON filed as a part of the Registration
Statement.
1.99 "Records" shall mean all books, documents and records owned or
used by the LRS Companies, including but not limited to personnel, medical and
accounting records, tax records, minute and stock record books, correspondence,
governmentally required records, manuals, engineering data, designs, drawings,
blueprints, plans, specifications, lists, customer lists, computer media,
software and software documentation, sales literature, catalogues, promotional
items, advertising materials and other written materials.
1.100 "Registration Rights Agreement" shall mean the registration
rights agreement in substantially the form of EXHIBIT 8 attached to this
Agreement.
1.101 "Registration Statement" shall mean a registration statement on
Form S-4 to be filed under the Securities Act by SYBRON in connection with the
Merger for purposes of registering the shares of Sybron Stock to be issued in
the Merger pursuant to Article II of this Agreement.
1.102 "SEC" shall mean the Securities and Exchange Commission.
1.103 "Securities Act" shall mean the Securities Act of 1933, as the
same may be in effect from time to time.
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1.104 "Subsidiary" shall mean any corporation, a majority of the
outstanding capital stock of which (of any class or classes, however designated,
having ordinary voting power for the election of a majority of the board of
directors of such corporation) shall at the time be owned by the relevant Person
directly or through one or more corporations which are themselves Subsidiaries.
1.105 "Surviving Corporation" shall have the meaning set forth in
Section 2.1 of this Agreement.
1.106 "SYBRON" shall mean Sybron International Corporation, a Wisconsin
corporation.
1.107 "Sybron Closing Certificate" shall mean the Closing Certificate
of SYBRON in substantially the form of EXHIBIT 9 attached to this Agreement.
1.108 "Sybron Counsel Opinion" shall mean the opinion of Quarles &
Brady in substantially the form of EXHIBIT 10 attached to this Agreement.
1.109 "Sybron Stock" shall mean shares of the common stock, par value
$0.01 per share, of SYBRON.
1.110 "Sybron SEC Reports" shall mean the following documents filed by
SYBRON with the SEC:
(a) Reports on Form 10-Q for the quarters ended June 30, 1997,
March 31, 1997 and December 31, 1996;
(b) Reports on Form 10-K for the years ended September 30, 1997,
1996, 1995, and 1994;
(c) Proxy Statements dated December 23, 1997, December 20, 1996,
December 19, 1995 and December 16, 1994;
(d) Report on Form 8-K dated April 25, 1997; and
(e) all documents filed after the date of this Agreement and
prior to the Effective Time of Merger pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934.
1.111 "Tax Opinion Letter" shall mean the opinion letter of Quarles &
Brady, including the supporting representations to Quarles & Brady, in
substantially the form of EXHIBIT 7 attached to this Agreement.
1.112 "Total Shares Deemed Outstanding" shall mean, as of the Closing
Date, the sum of (i) the number of shares of LRS Common Stock (other than
Nonvested Restricted Shares), plus (ii) .72 multiplied by the number of
Nonvested Restricted Shares, plus (iii) .72 multiplied by the number of shares
of LRS Common Stock issuable upon exercise of all LRS Options (assuming 100%
vesting), plus (iv) the number of shares of LRS Common Stock issuable upon
exercise of the LRS Warrant.
1.113 "Warrant Price" shall mean the fair market value of the LRS
Warrant as of the Effective Time of Merger calculated by (a) multiplying the Net
Equity Merger Price by a fraction, the numerator of which shall be the number of
shares of LRS Common Stock issuable upon exercise of the LRS Warrant and the
denominator of which shall be the Total Shares Deemed Outstanding, and (b)
subtracting therefrom the aggregate exercise price of the LRS Warrant.
1.114 "Year 2000 Compliant" shall have the meaning set forth in Section
4.31 of this Agreement.
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ARTICLE II
THE MERGER; OTHER AGREEMENTS
2.1 The Merger. This Agreement provides for the merger of ACQUISITION
with and into LRS, whereby the LRS Common Stock, the LRS Options (except as
otherwise provided in Section 2.7(a)), the LRS Warrant, and the LRS Preferred
Stock will be converted into or exchanged for shares of Sybron Stock as
described in this Agreement. As of the Effective Time of Merger, ACQUISITION
will be merged with and into LRS, which shall be the surviving corporation in
the Merger (the "Surviving Corporation") and shall continue to be governed by
the Laws of the State of Delaware, and the separate existence of ACQUISITION
shall thereupon cease. The Merger shall be pursuant to the provisions of, and
shall be with the effects provided in, the DGCL.
2.2 Effective Time of Merger. The consummation of the Merger shall be
effected as promptly as practicable after the satisfaction or waiver of the
conditions set forth in Article VIII and Article IX of this Agreement and
ACQUISITION and LRS will cause the Certificate of Merger to be executed,
delivered and filed with the Delaware Secretary of State. The Merger shall
become effective on the date and at the time of the filing of the Certificate of
Merger with the Delaware Secretary of State, or such other date and time
specified in the Certificate of Merger. The date and time on which the Merger
shall become effective is referred to in this Agreement as the "Effective Time
of Merger".
2.3 Certificate of Incorporation of Surviving Corporation. The Amended
and Restated Certificate of Incorporation of LRS as in effect immediately prior
to the Effective Time of Merger shall be the Amended and Restated Certificate of
Incorporation of the Surviving Corporation until amended in accordance with Law.
2.4 Bylaws of Surviving Corporation. The Bylaws of LRS as in effect
immediately prior to the Effective Time of Merger shall be the Bylaws of the
Surviving Corporation until amended in accordance with Law.
2.5 Directors and Officers of Surviving Corporation. The duly qualified
and acting directors and officers of ACQUISITION immediately prior to the
Effective Time of Merger shall be the directors and officers of the Surviving
Corporation, to hold office as provided in the Bylaws of the Surviving
Corporation.
2.6 Conversion of LRS Common Stock, LRS Preferred Stock, and
ACQUISITION Common Stock. At the Effective Time of Merger, and without any
action on the part of the holders of the LRS Common Stock, LRS Preferred Stock,
and ACQUISITION Common Stock:
(a) Each share of LRS Preferred Stock issued and outstanding
immediately prior to the Effective Time of Merger shall be converted into that
number of shares of Sybron Stock as is equal to (i) the applicable Preferred
Stock Value for such share of LRS Preferred Stock, divided by (ii) the Average
Sybron Stock Price; subject to the provisions of Section 2.8(e) of this
Agreement concerning cash being paid for fractional shares.
(b) Each share of LRS Common Stock issued and outstanding
immediately prior to the Effective Time of Merger (other than the Nonvested
Restricted Shares) shall be converted into that number of shares of Sybron Stock
as is equal to (i) the Common Equity Merger Price, divided by (ii) the Average
Sybron Stock Price; subject to the provisions of Section 2.8(e) of this
Agreement concerning cash being paid for fractional shares.
(c) Each Nonvested Restricted Share issued and outstanding
immediately prior to the Effective Time of Merger shall be converted into that
number of shares of Sybron Stock as is equal to (i) the Nonvested Restricted
Share Value, divided by (ii) the Average Sybron Stock Price; subject to the
provisions of Section 2.8(e) of this Agreement concerning cash being paid for
fractional shares.
(d) Any shares of LRS Common Stock or LRS Preferred Stock that are
owned by any of the LRS Companies at the Effective Time of Merger shall be
canceled and retired and cease to exist and no Sybron Stock or other
consideration shall be issued or delivered in exchange therefor.
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(e) From and after the Effective Time of Merger, the holders of LRS
Certificates outstanding immediately prior to the Effective Time of Merger shall
cease to have any rights with respect to the LRS Common Stock and LRS Preferred
Stock formerly represented thereby, except as otherwise provided in this
Agreement or by Law.
(f) Each share of common stock of ACQUISITION issued and
outstanding at the Effective Time of Merger shall be converted into one (1)
share of the common stock of the Surviving Corporation.
2.7 LRS Options; LRS Warrant.
(a) Each LRS Option outstanding immediately prior to the Effective
Time of Merger shall be exchanged for that number of shares of Sybron Stock as
is equal to (i) the applicable Option Value for such LRS Option, divided by (ii)
the Average Sybron Stock Price; subject to the provisions of Section 2.8(e) of
this Agreement concerning cash being paid for fractional shares; provided,
however, that for any LRS Option for which consent to the exchange as set forth
herein has not been obtained prior to Closing: (y) said LRS Option shall,
following the Merger, constitute an option to acquire shares of Sybron Stock, on
the same terms and conditions (including vesting provisions) as were applicable
under such LRS Option, based on the same number of shares of Sybron Stock as the
holder of such LRS Option would have been entitled to receive pursuant to the
Merger in accordance with Article II hereof had such holder exercised such
option (assuming 100% vesting) immediately prior to the Effective Time of
Merger, and with an appropriate adjustment to the exercise price per share; and
(z) the aggregate Option Value for all LRS Options for which consent to the
exchange as set forth herein has not been obtained prior to Closing shall
constitute a reduction to the Gross Merger Price.
(b) The LRS Warrant shall be exchanged for shares of Sybron Stock
pursuant to this Article II of this Agreement. The number of shares of Sybron
Stock to be delivered to the LRS Warrantholder in exchange for the LRS Warrant,
as described in Section 2.8, shall be equal to the Warrant Price divided by the
Average Sybron Stock Price; subject to the provisions of Section 2.8(e) of this
Agreement concerning cash being paid for fractional shares.
2.8 Exchange of LRS Certificates.
(a) As of the Effective Time of Merger, SYBRON shall deposit, or
shall cause to be deposited, with the Exchange Agent, for the benefit of the
holders of LRS Common Stock, LRS Options (other than LRS Options for which
consent has not been obtained, as discussed in Section 2.7(a) above), the LRS
Warrant and LRS Preferred Stock, for conversion, exchange, or delivery in
accordance with this Article II of this Agreement through the Exchange Agent,
certificates representing the shares of Sybron Stock (such certificates for
shares of Sybron Stock, together with any cash for fractional share interests to
be paid pursuant to Section 2.8(e) of this Agreement, being hereinafter referred
to as the "Exchange Fund") issuable pursuant to Sections 2.6 and 2.7 of this
Agreement. As further described in the Exchange Agreement and the Escrow
Agreement, said Sybron Stock certificates shall be segregated into two groups
the first group to be distributed by the Exchange Agent pursuant to Section
2.8(b)(ii) hereof, and the second group to be held by the Escrow Agent pursuant
to Section 2.8(f) hereof.
(b) (i) Prior to the Closing, the Exchange Agent shall mail to the
holder of record of the LRS Warrant and each LRS Option and to each holder of
record of a certificate or certificates representing outstanding shares of LRS
Common Stock or LRS Preferred Stock (which stock certificates shall, together
with the LRS Warrant certificate and each LRS Option agreement to be exchanged
for Sybron Stock pursuant to Section 2.7(a) hereof, be referred to herein
collectively as the "LRS Certificates"): (A) a letter of transmittal which shall
specify that delivery shall be effected, and risk of loss and title to the LRS
Certificates shall pass, only upon the Effective Time of Merger and delivery of
the LRS Certificates to the Exchange Agent and which shall be in such form and
have such other provisions as SYBRON may reasonably specify; and (B)
instructions to effect the surrender of the LRS Certificates in exchange for
certificates representing shares of Sybron Stock.
(ii) Upon surrender of an LRS Certificate for cancellation to
the Exchange Agent together with such letter of transmittal, duly executed, and
with such other documents as the Exchange Agent may reasonably require, the
holder of such LRS Certificate shall be entitled to receive in exchange
therefor, following the Effective Time of Merger and at Closing if practicable,
a certificate representing such holder's Distributed Shares plus any cash in
lieu
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of any fractional share interest in accordance with Section 2.8(e) of this
Agreement, and the LRS Certificate so surrendered shall forthwith be canceled;
provided, however, that fractional share interests of any one holder shall be
aggregated to maximize the number of whole shares of Sybron Stock to be issued
and minimize the fractional interests to be paid in cash as provided in Section
2.8(e) of this Agreement. For purposes of this Agreement, the term "Distributed
Shares" shall mean, with respect to any holder of an LRS Certificate, that
number of whole shares of Sybron Stock to which such holder is entitled in
respect of such LRS Certificate pursuant to the provisions of this Article II of
this Agreement minus the Holdback Shares (if any). For purposes of this
Agreement, the term "Holdback Shares" shall mean the shares of Sybron Stock that
are deposited in the Escrow Account pursuant to Section 2.8(f) hereof. The total
number of Holdback Shares shall be the number of shares of Sybron Stock that
equals in value (using the Average Sybron Stock Price) $6,300,000. The dollar
amount of Holdback Shares for each Holdback Participant shall be as set forth on
the Disclosure Schedule, and in no event shall the aggregate number of Holdback
Shares be less than $6,300,000 divided by the Average Sybron Stock Price.
(iii) In the event of a transfer of ownership of shares of LRS
Common Stock or LRS Preferred Stock which has not been registered in the
transfer records of LRS, a certificate representing the proper number of shares
of Sybron Stock may be issued to the transferee if the LRS Certificate which
represented such shares of LRS Common Stock or LRS Preferred Stock is presented
to the Exchange Agent, accompanied by all documents required to evidence and
effect such transfer, and by evidence that any applicable stock transfer taxes
have been paid.
(iv) Until surrendered as contemplated by this Section 2.8 of
this Agreement, each LRS Certificate shall be deemed at all times after the
Effective Time of Merger to represent only the right to receive upon surrender,
subject to all of the terms and conditions herein, a certificate representing
shares of Sybron Stock and cash in lieu of any fractional share interest as
contemplated by Section 2.8(e) of this Agreement.
(v) In the event an LRS Certificate has been lost, stolen,
destroyed or mutilated, a certificate representing the proper number of shares
of Sybron Stock issuable therefor may be issued to the holder as described in
this Article II of this Agreement upon receipt by the Exchange Agent of
reasonably satisfactory evidence from the holder of ownership and the loss,
theft, destruction or mutilation of the LRS Certificate and, in the case of any
loss, theft or destruction, a reasonably satisfactory indemnity and, in the case
of a mutilation, all remaining portions of such LRS Certificate.
(c) No dividends or other distributions declared or made after the
Effective Time of Merger with respect to Sybron Stock with a record date after
the Effective Time of Merger shall be paid to the holder of any unsurrendered
LRS Certificate with respect to the shares of Sybron Stock represented thereby,
and no cash payment in lieu of a fractional share shall be paid to any such
holder pursuant to Section 2.8(e) of this Agreement, until the holder of such
LRS Certificate shall surrender such LRS Certificate. Subject to the effect of
any applicable Law, following surrender of any such LRS Certificate, there shall
be paid to the holder of the certificate representing whole shares of Sybron
Stock issued in exchange therefor, without interest: (i) promptly, the amount of
any cash payable with respect to a fractional share interest to which such
holder is entitled pursuant to Section 2.8(e) of this Agreement and the amount
of dividends or other distributions with a record date after the Effective Time
of Merger theretofore paid with respect to such whole shares of Sybron Stock;
and (ii) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time of Merger but prior to
surrender and a payment date occurring after surrender payable with respect to
such whole shares of Sybron Stock.
(d) All shares of Sybron Stock issued upon conversion of the LRS
Common Stock and LRS Preferred Stock or in exchange for the LRS Options and LRS
Warrant in accordance with the terms of this Agreement (and any cash paid
pursuant to Section 2.8(e) of this Agreement) shall be deemed to have been
issued (and paid) in full satisfaction of all rights pertaining to the LRS
Common Stock, LRS Options, LRS Warrant and LRS Preferred Stock.
(e) No fractional shares of Sybron Stock shall be issued in the
Merger or upon the exchange of Sybron Stock for the LRS Warrant and LRS Options.
All fractional share interests of a holder of more than one LRS Certificate at
the Effective Time of Merger shall be aggregated. If a fractional share interest
results after such aggregation, each holder of a fractional share interest shall
be paid an amount in cash equal to the product obtained by multiplying such
fractional share interest by the Average Sybron Stock Price. As soon as
practicable after the
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determination of the amount of cash, if any, to be paid to holders of fractional
share interests, the Exchange Agent shall notify SYBRON and SYBRON shall make
available such amounts to such holders at the Closing subject to and in
accordance with the terms of Section 2.8(c) of this Agreement.
(f) The aggregate Holdback Shares shall be deposited into the
Escrow Account and held by the Escrow Agent as described in the Escrow Agreement
for purposes of satisfaction of indemnification obligations under Section 10.3
hereof. The value of Sybron Stock for purposes of such indemnification
obligation settlements shall be the Average Sybron Stock Price. Upon the earlier
to occur of the date that the first audit of SYBRON's financial statements
following the Closing is completed or the one-year anniversary date of the
Closing Date, the Holdback Shares held by the Escrow Agent, less an appropriate
number of Holdback Shares to cover specific unresolved claims, shall be
delivered to the Holdback Participants.
(g) Any portion of the Exchange Fund which remains undistributed to
the LRS Stockholders or LRS Optionholders as of a date which is one year after
the Effective Time of Merger because LRS Certificates have not been duly
surrendered to the Exchange Agent shall be delivered to SYBRON, upon demand, and
any affected former LRS Stockholder and LRS Optionholder shall thereafter look
only to SYBRON for payment of its claim for shares of Sybron Stock, any cash in
lieu of fractional share interests, and any dividends or distributions with
respect to Sybron Stock.
(h) SYBRON shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any LRS
Stockholder, LRS Optionholder and the LRS Warrantholder such amounts (in shares
of Sybron Stock and based upon the Average Sybron Stock Price) as SYBRON is
required to deduct and withhold with respect to the making of such payment under
the Code, or any provision of state, local or foreign tax Law. To the extent
that amounts are so withheld by SYBRON, such withheld amounts shall be treated
for all purposes of this Agreement as having been paid to the LRS Stockholder,
LRS Optionholder or LRS Warrantholder in respect of which such deduction and
withholding was made by SYBRON.
(i) Neither the Exchange Agent nor any party to this Agreement
shall be liable to any LRS Stockholder, LRS Optionholder or the LRS
Warrantholder for any shares of Sybron Stock (or dividends or distributions with
respect thereto) or cash delivered to a public official pursuant to any
abandoned property, escheat or similar Law.
2.9 Sybron Stock Price.
(a) If the Average Sybron Stock Price is less than $36.875, SYBRON
and LRS shall each have the right but not the obligation to terminate this
Agreement prior to Closing.
(b) If the Average Sybron Stock Price is greater than $55.25, LRS
shall have the right but not the obligation to terminate this Agreement prior to
Closing.
2.10 Stock Transfer Books. At the Effective Time of Merger, the stock
transfer books of LRS shall be closed and there shall be no further registration
of transfers of shares of LRS Common Stock or LRS Preferred Stock thereafter on
the records of LRS.
2.11 Reorganization; Pooling. The parties intend that this Agreement be
a plan of reorganization within the meaning of Section 368(a) of the Code and
that the Merger be a tax free reorganization under Section 368(a) of the Code
and that the Merger qualify for "pooling of interests" accounting treatment
under the requirements of GAAP and applicable SEC regulations.
2.12 Dissenters' Rights. Notwithstanding anything in this Agreement to
the contrary, in the event that appraisal rights are available in connection
with the Merger pursuant to the applicable provisions of the DGCL, shares of LRS
Common Stock and LRS Preferred Stock which are issued and outstanding
immediately prior to the Effective Time of Merger and which are held by LRS
Stockholders who did not vote in favor of the Merger and who comply with all of
the relevant provisions of Section 262 of the DGCL ("Dissenting Shares") shall
not be converted into the right to receive shares of Sybron Stock, unless and
until such holders shall have failed to perfect or shall have effectively
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withdrawn or lost their rights to appraisal. If any such holder shall have
failed to perfect or shall have effectively withdrawn or lost such right, such
holder's shares of LRS Common Stock and/or LRS Preferred Stock shall thereupon
be deemed to have been converted into shares of Sybron Stock as of the Effective
Time of Merger as provided in Section 2.6 of this Agreement. With respect to
Dissenting Shares, the Surviving Corporation (with funds provided by SYBRON)
shall pay the holders thereof the "fair value" of their Dissenting Shares
pursuant to the DGCL.
ARTICLE III
OTHER AGREEMENTS
3.1 Gross Merger Price Adjustments.
(a) At least fourteen (14) days prior to the Closing Date, LRS
shall deliver to SYBRON its unaudited (or, if available, its audited)
consolidated and consolidating financial statements for the year ended December
31, 1997, plus any other Financial Information reasonably requested by SYBRON in
connection therewith. In the event that the EBITDA reflected on said financial
statements is less than $9,500,000, the Gross Merger Price shall be reduced to
the amount that equals the EBITDA reflected thereon multiplied by twelve (12),
less the amount of the payments described on EXHIBIT 11 hereto and any reduction
required by Section 2.7(a), unless such EBITDA is less than $9,000,000, in which
case LRS shall be entitled, at its option, to either terminate this Agreement
prior to Closing or proceed at a Gross Merger Price of twelve (12) times EBITDA,
minus the amount of said EXHIBIT 11 payments and any reduction required by
Section 2.7(a); provided, however, that if LRS elects to terminate this
Agreement pursuant to this Section 3.1(a), SYBRON shall be entitled to void said
termination and proceed as if such EBITDA were $9,000,000 (i.e., with a Gross
Merger Price of $108,000,000 less the amount of the payments described on
EXHIBIT 11 hereto and any reduction required by Section 2.7(a)). If the EBITDA
reflected on the financial statements is greater than $9,500,000, the Gross
Merger Price shall remain as set forth in Article I without any adjustment
pursuant to this Section 3.1(a).
(b) Prior to the Closing Date, LRS and SYBRON shall jointly prepare
and agree on the Closing Balance Sheet. The parties acknowledge and agree that
the Closing Balance Sheet will contain (i) accruals for the Expenses of LRS and
the LRS Stockholders to the extent not paid directly by LRS or the LRS
Stockholders prior to the Closing and (ii) accruals and reserves for the matters
identified on Section 3.1(b) of the Disclosure Schedule, regardless of whether
GAAP would require said accruals and/or reserves. In the event that the amount
of the stockholders' equity as reflected on the Closing Balance Sheet is less
than or greater than $6,797,000, the Gross Merger Price shall be reduced by the
amount by which the stockholders' equity is less than $6,797,000 or shall be
increased by the amount by which the stockholders' equity is greater than
$6,797,000; provided, however, that in the event an EBITDA adjustment is made
pursuant to Section 3.1(a), the stockholders' equity target number shall be
reduced by an amount equal to sixty-five percent (65%) of the EBITDA shortfall
below $10,000,000. (For example, if the EBITDA number were $9,300,000, the
stockholders' equity target number would be reduced by $455,000 to $6,342,000.)
3.2 Registration Statement. SYBRON, with the cooperation of LRS, will
prepare and file with the SEC the Registration Statement (which will include the
Proxy Statement) as soon as reasonably practicable after the date of this
Agreement. SYBRON (with the cooperation of LRS) shall use reasonable efforts to
cause the Registration Statement to be declared effective under the Securities
Act as promptly as practicable after such filing. SYBRON shall also take such
action as may be reasonably required to cause the shares of Sybron Stock
issuable pursuant to the Merger to be registered or to obtain an exemption from
registration under applicable state "blue sky" or securities Laws; provided,
however, that SYBRON shall not be required to qualify as a foreign corporation
or to file any general consent to service of process under the Laws of any
jurisdiction or to comply with any other requirements deemed by SYBRON to be
unduly burdensome. Each party to this Agreement will furnish to the other
parties all information concerning itself as each such other party or its
counsel may reasonably request and which is required or customary for inclusion
in the Proxy Statement and the Registration Statement.
3.3 Approval of LRS Stockholders and LRS Optionholders. LRS shall as
soon as reasonably practicable after the effectiveness of the Registration
statement: (a) take all steps necessary to call, give notice of,
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convene and hold the LRS Special Meeting; (b) distribute the Proxy Statement,
which shall also constitute the prospectus of SYBRON included in the
Registration Statement, to the LRS Stockholders and LRS Optionholders in
accordance with applicable Federal and state Law and with its Amended and
Restated Certificate of Incorporation and Bylaws; (c) recommend to the LRS
Stockholders and the LRS Optionholders the approval of this Agreement and the
transactions contemplated by this Agreement and such other matters as may be
submitted to the LRS Stockholders and the LRS Optionholders in connection with
this Agreement; (d) take such other steps as are necessary to obtain the
consents and approvals described in Section 4.25 hereof; and (e) cooperate and
consult with SYBRON with respect to each of the foregoing matters.
3.4 Access.
(a) Upon reasonable notice, LRS shall, and shall cause the LRS
Companies to, provide the agents, accountants, attorneys and representatives of
SYBRON with reasonable access (during the normal business hours of the LRS
Companies) to the books, records, financial information, facilities, key
personnel and other documents and materials of the LRS Companies; provided that
until such time as the parties have received all approvals (or, alternatively,
expiration or termination of all waiting periods) required under the HSR Act to
permit the Closing of the transactions contemplated by this Agreement, such
access shall be subject to the prior notice and approval of the President of LRS
(which approval shall not be unreasonably withheld or delayed and shall not be
administered so as to have the effect of denying SYBRON the opportunity to
obtain all information reasonably necessary for it to confirm the
representations and warranties of LRS contained in this Agreement).
(b) LRS and SYBRON agree that, except as modified by Section 3.12
of this Agreement, the provisions of the Confidentiality Agreement shall remain
in full force and effect; provided, however, that at the Effective Time of
Merger, the Confidentiality Agreement shall be deemed to have been terminated
without further action by the parties.
3.5 Disclosure Schedule.
(a) On the date hereof, LRS delivered to SYBRON the Disclosure
Schedule, which was accompanied by a certificate signed by the President and
Chief Executive Officer and the Secretary of LRS stating the Disclosure Schedule
was delivered pursuant to this Agreement and was the Disclosure Schedule
referred to in this Agreement. The Disclosure Schedule is deemed to constitute
an integral part of this Agreement and to modify those representations,
warranties, covenants or agreements of this Agreement specifically referenced
therein.
(b) Prior to the Closing Date, LRS shall update the Disclosure
Schedule to reflect any matters which have occurred or which LRS has discovered
or otherwise becomes aware of from and after the date of this Agreement which,
if existing or known, as the case may be, on the date of this Agreement, would
have been required to be described in the Disclosure Schedule (a "Disclosure
Schedule Change"). If, in the reasonable judgment of SYBRON, any matter
contained in such Disclosure Schedule Change (whether alone or in conjunction
with the items disclosed in the Disclosure Schedule delivered pursuant to
Section 3.5(a) or in previous Disclosure Schedule Changes), has or would
reasonably be likely to have an LRS Material Adverse Effect or would reasonably
be likely to otherwise be materially adverse in any manner to SYBRON or
ACQUISITION (as the Surviving Corporation), SYBRON shall have the right, within
ten (10) days following receipt of written notice of the Disclosure Schedule
Change, to terminate this Agreement pursuant to Section 10.1(d) hereof. To the
extent SYBRON opts not to terminate this Agreement as described above, such
Disclosure Schedule Change shall be deemed not to give rise to an LRS Material
Adverse Effect for purposes of Section 8.5 of this Agreement.
(c) The Disclosure Schedule is arranged so that the disclosures,
exceptions, and/or information provided therein correspond to the lettered and
numbered paragraphs in this Agreement. Any matter which is disclosed in the
Disclosure Schedule with respect to a particular provision of this Agreement
shall be deemed to have been disclosed for the purposes of all relevant
provisions of this Agreement without the necessity of cross-reference if it is
reasonably apparent on its face that said disclosure is applicable to said other
provisions of this Agreement.
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3.6 Duties Concerning Representations. Each party to this Agreement
shall to the extent within its control, use reasonable efforts to cause all of
its representations and warranties contained in this Agreement to be true and
correct in all material respects at the Effective Time of Merger with the same
force and effect as if such representations and warranties had been made at and
as of the Effective Time of Merger.
3.7 Deliveries of Information; Consultation. From time to time prior to
the Effective Time of Merger:
(a) LRS shall furnish promptly to SYBRON, subject to the provisions
of the Confidentiality Agreement: (i) the monthly consolidated and consolidating
financial statements of the LRS Companies (as prepared by LRS in accordance with
its normal accounting procedures) promptly after such financial statements are
available; (ii) a summary of any action taken by the Board of Directors, or any
committee thereof, of any of the LRS Companies; and (iii) all other information
concerning the Business, properties and personnel of any of the LRS Companies as
SYBRON may reasonably request.
(b) SYBRON shall promptly furnish to LRS a copy of each report,
schedule and other document filed by SYBRON with the SEC pursuant to the
requirements of federal securities Laws promptly after such documents are
publicly available.
(c) LRS shall, and shall cause the LRS Companies to, confer and
consult with representatives of SYBRON and its Subsidiaries on a regular and
frequent basis to report on operational matters and the general status of
ongoing business operations of the LRS Companies, which reports and discussions
shall be subject to the provisions of the Confidentiality Agreement.
(d) Each party to this Agreement shall provide prompt notice to the
other parties of any litigation, arbitration proceeding, governmental proceeding
or legal action of any kind which may be commenced or overtly threatened by any
Person concerning the legality, validity or propriety of the transactions
contemplated by this Agreement.
3.8 Affiliates; Accounting and Tax Treatment. LRS shall advise the
Affiliates of the resale restrictions imposed by applicable securities Laws and
required to cause the Merger to qualify for pooling-of-interests accounting
treatment, and shall obtain from each Affiliate an executed Affiliate Letter.
LRS shall obtain an executed Affiliate Letter from any Person who becomes an
Affiliate of LRS after the date of this Agreement and on or prior to the
Effective Time of Merger. LRS and SYBRON will each use its respective best
efforts to cause the Merger to qualify for pooling-of-interests accounting
treatment and as a reorganization under Section 368(a) of the Code (including,
with respect to SYBRON, refraining from any sale of stock or assets following
the Closing except in accordance with the provisions of Code Section
368(a)(2)(C)).
3.9 Letters of Accountants.
(a) LRS shall use its reasonable efforts to cause to be delivered
to SYBRON a letter of Ernst & Young LLP, LRS's independent auditors, dated a
date within two business days before the date on which the Registration
Statement shall become effective and addressed to SYBRON, in form and substance
reasonably satisfactory to SYBRON and customary in scope and substance for cold
comfort letters delivered by independent public accountants in connection with
registration statements similar to the Registration Statement.
(b) SYBRON shall use its reasonable efforts to cause to be
delivered to LRS a letter of KPMG Peat Marwick LLP, SYBRON's independent
auditors, dated a date within two business days before the date on which the
Registration Statement shall become effective and addressed to LRS, in form and
substance reasonably satisfactory to LRS and customary in scope and substance
for cold comfort letters delivered by independent public accountants in
connection with registration statements similar to the Registration Statement.
3.10 Legal Conditions to Merger. Subject to Section 3.14 hereof, each
party to this Agreement will: (a) take all reasonable actions necessary to
comply promptly with all legal requirements which may be imposed on it with
respect to the Merger (including making all filings and requests in connection
with approvals of or filings with any
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governmental entity as described in Sections 8.9 and 9.8 of this Agreement and
furnishing all information required in connection therewith); (b) promptly
cooperate with and furnish information to the other parties in connection with
any such requirements imposed upon any of them in connection with the Merger;
and (c) consistent with Section 9.8(a) hereof, take all reasonable actions
necessary to obtain (and will cooperate with the other parties in obtaining) any
such consent, authorization, order or approval of, or any exemption by, any
governmental entity or other public or private Person required to be obtained or
made by the parties to this Agreement in connection with the Merger or the
taking of any action contemplated thereby or by this Agreement.
3.11 Stock Exchange Listing. SYBRON shall use its reasonable efforts to
cause the shares of Sybron Stock to be issued in the Merger to be approved for
listing on the New York Stock Exchange, subject to official notice of issuance.
3.12 Public Announcements. Subject to each party's disclosure
obligations imposed by Law or any securities exchange, LRS, ACQUISITION and
SYBRON will not make any disclosure (including disclosure to employees,
customers, and the like) pertaining to the subject matter contained in this
Agreement without the consent of the other parties hereto, and then only after
prior consultation with the other parties. If disclosure is required by Law or
applicable rules of any securities exchange, each party agrees to consult with
the other parties hereto prior to making any disclosure. In the event SYBRON
determines that it must make prior to the filing of the Registration Statement
an initial public announcement regarding the proposed Merger, SYBRON shall
notify LRS accordingly, and provided that LRS is not primarily responsible for
the necessity to make such announcement, LRS shall have up to twenty-four (24)
hours after notification to terminate this Agreement. Said termination must be
communicated to SYBRON within said twenty-four (24) hour period via facsimile
transmission to either Mr. Harris or Mr. Bresson at their respective facsimile
numbers set forth in Section 10.9 hereof. LRS, ACQUISITION and SYBRON will
cooperate with each other in the development and distribution of all news
releases and other public information disclosures with respect to this Agreement
or any of the transactions contemplated hereby.
3.13 Expenses.
(a) Except as otherwise provided in this Agreement, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement ("Expenses") shall be paid by the party incurring
such expenses, except that the costs incurred in connection with printing the
Proxy Statement and Registration Statement, as well as the filing fee relating
thereto, shall be paid by SYBRON. "Expenses" shall include those items
identified as "Expenses" on Section 3.13 of the Disclosure Schedule as well as,
without limitation, all out-of-pocket costs, fees and expenses incurred by each
party, including the fees and expenses of counsel, accountants, brokers,
consultants, investment bankers, financial advisors, and other third parties
engaged by said party in connection with: (i) the negotiation, preparation,
execution, delivery and performance of this Agreement; and (ii) the other
Closing responsibilities of said party.
(b) The Closing Balance Sheet shall contain accruals for the
Expenses (or an estimate thereof) of LRS and the LRS Stockholders to the extent
not paid prior to Closing. Except as may otherwise be agreed, said Expenses
shall be paid at Closing, and SYBRON shall provide funds, if necessary, to the
Surviving Corporation for said payments.
3.14 HSR Act. Within three (3) business days after the execution of
this Agreement, each of SYBRON and LRS will file with the Antitrust Division of
the United States Department of Justice and the Federal Trade Commission the
pre-merger notifications required by the HSR Act from such party with respect to
this transaction, and SYBRON shall pay the $45,000 filing fee. Each party shall
(a) subject to Section 10.1 hereof, use reasonable efforts, taking into account
the projected time, effort, and expense involved, to obtain termination of the
waiting period and to respond promptly to reasonable requests for information
and inquiries (including those contained in a second request) in connection with
such filings; and (b) cooperate fully with one another in the preparation of
such filings and responses. SYBRON shall be primarily responsible for preparing
and presenting the parties' position under the HSR Act.
3.15 Other Payments at Closing. On the Closing Date, SYBRON shall pay
(or will fund the Surviving Corporation and it shall pay) (a) the Certain
Indebtedness (after LRS has used its available cash balances to repay a
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portion of the Certain Indebtedness), and (b) the amounts to the Persons set
forth on EXHIBIT 11 hereto, net of any amounts required to be withheld with
respect to such payments pursuant to applicable tax Laws and subject to any
conditions of payment set forth on EXHIBIT 11.
3.16 OFP Agreement. SYBRON shall participate in negotiations with
Massachussetts Financing Corporation ("OFP") in good faith in order to reach an
agreement regarding the amendment referenced in Section 8.16(d) hereof as
promptly as practicable after the date hereof. In connection therewith, SYBRON
will use best efforts to negotiate an amendment to the Exclusive Marketing
Agreement entered into by and between Ormco Corporation and Credit Services
Limited to provide for the termination of the agreement at or prior to the
Closing. The terms of the amendment to said Exclusive Marketing Agreement are
subject to the prior approval of LRS, which approval shall not be unreasonably
withheld; provided, however, LRS shall have the right to approve the payment by
LRS of any amount in connection with said amendment in its sole discretion. If
said amendment provides for a payment to Credit Services Limited (including any
forgiveness of indebtedness), SYBRON shall be responsible for the first $100,000
of the payment, and LRS shall pay any amount over $100,000 and said amount shall
be considered an Expense of LRS for purposes of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF LRS
LRS hereby represents and warrants to SYBRON and ACQUISITION as
follows:
4.1 Organization; Business.
(a) Each of the LRS Companies is a corporation duly and validly
organized and existing and in good standing under the Laws of its respective
state of incorporation, which is indicated in the Disclosure Schedule. Each of
the LRS Companies is qualified to do business as a foreign corporation and is in
good standing in all other jurisdictions where the ownership or leasing of
property or the conduct of its Business requires qualification as a foreign
corporation by it, except where the failure to so qualify does not and will not
have an LRS Material Adverse Effect.
(b) Each of the LRS Companies has full corporate power and
authority and all material permits, licenses, approvals, authorizations, and
registrations necessary to carry on its Business as it is now conducted and to
own, lease and operate its assets and properties.
(c) Copies of the Articles or Certificate of Incorporation and
Bylaws or other organizational documents of each of the LRS Companies, as
amended, certified by the Secretary of LRS as of the date of this Agreement,
have been delivered by LRS to SYBRON and such copies are complete and correct
copies of such documents in effect as of the date of this Agreement.
(d) The only Subsidiaries of LRS are AC and ACIE, and the only
Subsidiaries of AC are AC Mexico, AC GmbH, and AC Netherlands. AC Europe is a
subsidiary of AC Netherlands, and except for AC Europe, none of AC Mexico, AC
GmbH, AC Netherlands or ACIE has any Subsidiaries.
(e) The present officers and directors of each of the LRS Companies
are set forth in the Disclosure Schedule.
4.2 Capitalization.
(a) The entire authorized capital stock of LRS consists of: (i)
12,000 shares of Common Stock, par value $.01 per share, of which 7,755 shares
are presently issued and outstanding (which does not include 437 shares subject
to LRS Options and 2,000 shares subject to the LRS Warrant); (ii) 5,000 shares
of Series A Preferred Stock, par value $1.00 per share, of which 4,110.69 shares
are presently issued and outstanding; and (iii) 7,000 shares of Series B
Preferred Stock, par value $1.00 per share, of which 5,192.65 shares are
presently issued and outstanding.
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(b) The entire authorized capital stock of AC consists of 2,500
shares of Common Stock, par value $1.00 per share, all of which are issued and
outstanding and owned by LRS.
(c) The entire authorized capital stock of ACIE consists of an
unlimited number of shares of Common Stock, no par value per share, of which
1,000 shares are issued and outstanding, all of which are owned by LRS or a
Subsidiary thereof.
(d) The entire authorized capital stock of AC Mexico consists of
(i) 1,000 shares of Series A Common Stock, par value $1.00 per share, of which
1,000 shares are issued and outstanding, all of which (other than one director's
share) are owned by AC, and (ii) 6,915,714 shares of Series B Common Stock, all
of which are issued and outstanding and owned by AC.
(e) The entire authorized capital stock of AC GmbH consists of ____
shares of Common Stock, par value $___ per share, of which ____ shares are
issued and outstanding, all of which are owned by AC.
(f) The entire authorized capital stock of AC Netherlands consists
of 2,000 shares of Common Stock, par value NLG 100 per share, of which 400
shares are issued and outstanding, all of which are owned by AC.
(g) The entire authorized capital stock of AC Europe consists of
200 shares of Common Stock, par value NLG 1,000 per share, of which 40 shares
are issued and outstanding, all of which are owned by AC Netherlands.
(h) All of the outstanding capital stock of each of the LRS
Companies is duly authorized, validly issued, fully paid and nonassessable and
free of preemptive rights.
(i) All prior redemptions, if any, of LRS Common Stock and LRS
Preferred Stock and terminations or surrenders of options (or similar rights)
are described in the Disclosure Schedule and were made in compliance with all
applicable Laws, including all securities Laws, and, if applicable, the LRS
Acquisition Corp. 1994 Stock Plan or any other applicable agreement.
(j) Included in the Disclosure Schedule are (i) a list of all
outstanding LRS Options and the names of the Persons holding such Options; (ii)
a list of all outstanding shares of LRS Common Stock and LRS Preferred Stock and
the names of the Persons holding such shares; (iii) a copy of the LRS Warrant;
and (iv) a copy of the LRS Acquisition Corp. 1994 Stock Plan and a list of all
agreements (past and present) entered into thereunder. Each of the Persons
identified as a holder of LRS Options, LRS Common Stock, or LRS Preferred Stock,
and the LRS Warrantholder, are the holders of record of their respective
securities, and have good and marketable title thereto, free and clear of all
Liens. Except for the LRS Options, the LRS Warrant, and the 1994 Stock Plan
agreements, there are no options, warrants, conversion rights or other rights to
subscribe for or purchase, or other Contracts with respect to, any capital stock
of any of the LRS Companies.
(k) No "Event of Noncompliance" with respect to the LRS Preferred
Stock has occurred that has caused or will cause an increase in the standard
dividend rate for said LRS Preferred Stock.
4.3 Authorization; Enforceability. The execution, delivery and
performance of this Agreement and all of the documents and instruments required
by this Agreement to be executed and delivered by LRS and the LRS Warrantholder:
(a) are within the corporate power of LRS and the LRS Warrantholder; (b) have
been duly authorized by the unanimous vote of the Board of Directors of LRS; (c)
upon the approval of the LRS Stockholders, shall be duly authorized by all
necessary LRS corporate action; and (d) have been duly authorized by all
necessary action by the LRS Warrantholder. This Agreement is, and the other
documents and instruments required by this Agreement to be executed and
delivered by LRS or the LRS Warrantholder will be, when executed and delivered
by LRS or the LRS Warrantholder, as the case may be, the valid and binding
obligations of LRS or the LRS Warrantholder, as the case may be, enforceable
against each in accordance with their respective terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency or other similar
Laws affecting the enforcement of creditors' rights in general, moratorium Laws
or by general principles of equity.
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4.4 No Violation or Conflict. Subject to the receipt of the approvals
and consents described in Sections 8.9 and 9.8 of this Agreement and the filing
of the Certificate of Merger as described in this Agreement, the execution,
delivery and performance of this Agreement by LRS and the LRS Warrantholder:
(a) do not and will not conflict with or violate, breach,
constitute a default under, or give rise to a right of termination or
acceleration of an obligation under, any Law, the Articles or Certificate of
Incorporation or Bylaws of any of the LRS Companies, any material Existing
Contract, or the charter documents or any material Contract of the LRS
Warrantholder;
(b) will not result in the creation of any right or Lien against or
with respect to the LRS Common Stock or LRS Preferred Stock or any of the
material assets or properties of the LRS Companies; and/or
(c) do not require any approvals or consents of third parties, or
any declarations or filings with any court, governmental body or agency or other
public or private body, entity, or Person which approval, consent, declaration
or filing, if not obtained or made, would give rise to an LRS Material Adverse
Effect.
4.5 Assets.
(a) Each of the LRS Companies holds good and valid title to its
material assets and properties (including any owned and leased real property),
free and clear of any and all Liens, except: (i) the Existing Liens on the date
of this Agreement; and (ii) the Permitted Liens on the Closing Date.
(b) Except as set forth in the Disclosure Schedule, each of the LRS
Companies has sole control of its material assets and properties and none of
said assets or properties is leased, rented, licensed, or otherwise not owned by
an LRS Company.
(c) Except as set forth in the Disclosure Schedule, all of the
Equipment and other tangible properties and assets owned or used by any LRS
Company and their use conform in all material respects to applicable Laws. No
written notice of any material violation of any building, zoning, or other
material Laws relating to such assets, the Buildings, or their use has been
received by any LRS Company since January 1, 1995.
4.6 Litigation. Except for the Existing Litigation: (a) there is not
now, nor has there been since January 1, 1995, any litigation, arbitration
proceeding, governmental proceeding, Environmental Claim, or legal action of any
kind pending or, to the Knowledge of LRS, threatened against any of the LRS
Companies; and (b) there are no actions, suits or proceedings pending or, to the
Knowledge of LRS, threatened against any of the LRS Companies by any Person
which question the legality, validity or propriety of the transactions
contemplated by this Agreement.
4.7 Financial Information; Books and Records.
(a) The audited consolidated financial statements and unaudited
consolidated interim financial statements of LRS for the fiscal years ended
December 31, 1995 and 1996, the nine-month interim periods ended September 30,
1997 and 1996, and the ten-month interim period ended October 31, 1997 are
attached to the Disclosure Schedule, have been prepared in accordance with GAAP,
and fairly present in all material respects the consolidated financial position
of the LRS Companies as of the dates thereof and the results of their operations
and changes in financial position for the periods then ended, subject, in the
case of the unaudited consolidated interim financial statements, to normal
year-end adjustments, any other adjustments described therein and the lack of
footnote disclosure. The unaudited or, if available by Closing, audited
consolidated financial statements of LRS for the fiscal year ended December 31,
1997 to be included in the Disclosure Schedule by Closing will be prepared in
accordance with GAAP and will fairly present in all material respects the
consolidated financial position of the LRS Companies as of the date thereof and
the results of their operations and changes in financial position for the period
then ended, subject to, if unaudited, normal year-end adjustments and the lack
of footnote disclosure.
(b) Except pursuant to the deposit and collection of checks in the
ordinary course, none of the LRS Companies has guaranteed or become a surety or
is otherwise contingently liable for the obligation of any other
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Person in an amount that would be material to such LRS Company. All such
guarantees, suretyships and contingent liabilities, whether material to such LRS
Company or not, are described in the Disclosure Schedule. None of the LRS
Companies has any material liabilities or indebtedness, contingent, absolute,
accrued, or otherwise which would be required to be recorded by GAAP, other than
(i) as of October 31, 1997, as specifically identified in the LRS October
Balance Sheet and footnotes to the December 31, 1996 audited financial
statements; (ii) since October 31, 1997, liabilities or indebtedness incurred in
the ordinary course of business which are consistent in amount and character
with past practice and experience and either are not material in amount or
effect or are described in the Disclosure Schedule; (iii) as of the Closing
Date, as will be reflected on the Closing Balance Sheet; and (iv) as specified
on the Disclosure Schedule).
(c) The minute books of each of the LRS Companies contain correct
and complete records of all actions taken by the stockholders and the Board of
Directors (including committees of the Board) of each of the LRS Companies, and
all signatures contained therein are the true signatures of the Persons whose
signatures they purport to be. The share transfer books of each of the LRS
Companies are correct, complete and current in all respects. The accounting
books and Records of each of the LRS Companies: (i) are in all material respects
correct and complete; (ii) are current in a manner consistent with past
practice; (iii) have recorded therein all the material assets and liabilities of
the LRS Companies; and (iv) are those necessary to operate the Business.
(d) The Disclosure Schedule sets forth the name of each bank in
which each of the LRS Companies has an account or safe deposit box or with which
any of the LRS Companies has an arrangement for safekeeping, and the signatories
thereto. Said signatories constitute the only signatories with respect to said
accounts.
4.8 Absence of Certain Changes. Except as described in the Disclosure
Schedule, with respect to each of the LRS Companies, since October 31, 1997, the
Business has been operated only in the ordinary course and consistent with past
practice, and there has not been:
(a) any material adverse change in condition (financial or
otherwise), assets, liabilities, Business, operations, or earnings;
(b) any damage, destruction or loss (whether or not covered by
insurance) materially and adversely affecting properties, assets, or Business;
(c) any executory purchase commitment which is in any material
respect in excess of normal Business requirements or other than for normal
operating inventories or at prices higher than current wholesale market prices;
(d) any compensation (salary or bonus) paid to any LRS Stockholder,
director and/or employee of more than the amount set forth in the Disclosure
Schedule or any general increase in the level or rate of salaries or
compensation of employees, representatives or agents, or any specific increases
in the salary or compensation paid to or accrued for the benefit of any
employee, representative or agent whose compensation (including bonuses) after
such increase would be at an annual rate in excess of $50,000, or any increase
in the benefits payable under any bonus, profit sharing, pension or other
benefit plan;
(e) any material change in existing credit arrangements with any
bank or other institution;
(f) any liability incurred or assumed, or any Contract entered into
or assumed, whether written or oral, involving more than $25,000 in each
instance, except in the ordinary course of Business;
(g) any loan or advance made outside the ordinary course of
Business to any officer, director, consultant, agent, employee or LRS
Stockholder or relative or affiliate thereof in excess of $25,000;
(h) any payment of, or commitment to pay, any severance or
termination pay to any officer, director, consultant, agent, or employee;
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(i) any change in accounting methods or practices or any change in
depreciation or amortization policies or rates;
(j) any purchase, sale, or other disposition of material assets or
properties in anticipation of this Agreement, or any material purchase, lease,
sale, abandonment or other disposition of material assets, except in the
ordinary course of Business;
(k) any acquisition of all or any substantial part of the stock or
the business or operating assets of any other person, firm, association,
corporation or business organization;
(l) any discharge or satisfaction of any Lien or payment of any
liability, except in the ordinary course of Business;
(m) any waiver or release of any rights, except for rights of
insubstantial value, other than in the ordinary course of business;
(n) any cancellation or compromise of any debt or known claim
against others exceeding $25,000;
(o) any sale, transfer, grant or expiration of any material rights
under any Contracts or Intangible Assets;
(p) any labor dispute or disturbance which materially adversely
affected or may adversely affect the Business;
(q) any material transactions outside the ordinary course of
Business except for the transactions contemplated by this Agreement;
(r) any declaration or payment or setting aside the payment of any
dividend or any distribution in respect of the capital stock of any of the LRS
Companies or any direct or indirect redemption, purchase or other acquisition of
any such stock by any of the LRS Companies; or
(s) any marketing or sales programs instituted that differ from
programs of prior years that would have the effect of accelerating sales and
other revenues into the fourth quarter of the 1997 calendar year.
4.9 Buildings.
(a) To the Knowledge of LRS, the roofs, walls, foundations and
other major structural components of the Buildings are in good repair and are
free from material defects.
(b) To the Knowledge of LRS, the water, sewer, plumbing, heating,
ventilating, air- conditioning and electrical systems serving the Buildings are
fully operable and in good operating condition and repair and are in condition
to pass all material safety, health and other examinations under applicable
Laws.
(c) The Buildings: (i) constitute all real property and
improvements used by any LRS Company; (ii) are not in the possession of any
adverse possessors and are in the peaceful possession of the applicable LRS
Company; (iii) are not located in a Special Flood Hazard Area (as defined under
the National Flood Insurance Program)or in any flood plain, wetland or similar
restricted area; (iv) are served by all water, sewer, electrical, telephone,
drainage and gas utilities required for the operation of the Business; (v) have
full and free direct vehicular access to and from an abutting public road or
street; (vi) are used in a manner which is permitted under applicable zoning
ordinances and other material Laws without any special use approval or permits;
(vii) are used in a manner that does not require the issuance of any license,
permit, or approval not now issued; and (viii) require no work or improvements
to bring them into compliance with any applicable Laws.
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(d) LRS has no Knowledge of any planned or contemplated public
improvements which may result in special assessments against the Buildings or
which may otherwise materially affect the availability of utility service or
access to the Buildings.
(e) LRS has no Knowledge of any increase or contemplated increase
in the ad valorem assessments of the Buildings.
(f) To the Knowledge of LRS, no road change or road work is planned
or contemplated that would materially and adversely affect the present use of
the Buildings.
4.10 Existing Contracts. The Existing Contracts are the only Contracts
which constitute:
(a) a lease of, or agreement to purchase or sell, any capital
asset, real property or personal property and involving, in the case of personal
property leases only, an annual amount in excess of $25,000;
(b) any collective bargaining agreement;
(c) any management, consulting, employment, personal service,
agency or other Contract providing for employment or rendition of services and
which: (i) is in writing; or (ii) creates other than an at will employment
relationship; or (iii) provides for any commission, bonus, profit sharing,
incentive, retirement, consulting or additional compensation;
(d) an agreement or note evidencing Indebtedness;
(e) a written guaranty of any obligation of any Person in excess of
$25,000;
(f) an agreement for the storage, transportation, treatment or
disposal of any Hazardous Material or hazardous byproduct;
(g) a power of attorney (whether revocable or irrevocable) given to
any Person by any of the LRS Companies that is in force;
(h) an agreement by any of the LRS Companies not to compete in any
business or in any geographical area;
(i) an agreement restricting the right of any of the LRS Companies
to use or disclose any information in its possession;
(j) a partnership, joint venture or similar arrangement;
(k) a license, royalty agreement, distributor agreement or similar
authorization or obligation relating to the conduct of the Business;
(l) an agreement or arrangement with any Affiliate or LRS
Stockholder; or
(m) any other agreement which: (i) involves an amount in excess of
$25,000.00; or (ii) is material, either in amount or significance, to the
ongoing operations of the Business.
4.11 Performance of Contracts; Business Relationships.
(a) Each of the LRS Companies and, to the Knowledge of LRS, each
other party to each Existing Contract, has fully performed each term, covenant
and condition of each Existing Contract which is to be performed by it at or
before the date hereof. Each of the Existing Contracts is in full force and
effect and constitutes
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the legal and binding obligation of the relevant LRS Company and, to the
Knowledge of LRS, constitutes the legal and binding obligation of the other
parties thereto.
(b) To the Knowledge of LRS, except as set forth on the Disclosure
Schedule: (i) the LRS Companies maintain a good business relationship with their
material customers and suppliers taken as a whole;(ii) no material unresolved
complaint or dispute presently exists involving any material customer or
supplier of any of the LRS Companies; (iii) no material customer or supplier of
any LRS Company has given notice that it intends to cease doing business or
decrease its level of business with any LRS Company in any material way during
the twelve-month period beginning the date hereof; (iv) during the
eighteen-month period preceding the date hereof, no material Contracts of any of
the LRS Companies were terminated, expired, or not renewed; and (v) during the
eighteen-month period preceding the date hereof, no material supplier or
customer ceased doing business with any LRS Company.
(c) The Disclosure Schedule identifies those orthodontists who
receive fees or other consideration in exchange for promoting products of the
LRS Companies, and briefly lists all written arrangements and describes all oral
arrangements (e.g., fee amount, term expiration, etc.) with each such
orthodontist.
4.12 Existing Insurance Policies. The LRS Companies maintain liability
insurance against such insurable risks and in such amounts as are set forth in
the Existing Insurance Policies. The Existing Insurance Policies constitute all
insurance coverage owned by the LRS Companies and are in full force and effect
and, to the Knowledge of LRS, none of the LRS Companies has received notice of
any cancellation or threat of cancellation of such insurance. No property
damage, personal injury or liability claims have been made, or are pending,
against any of the LRS Companies that are not covered by insurance. Within the
past two (2) years, no insurance company has canceled any insurance (of any
type) maintained by any of the LRS Companies.
4.13 Employee Benefit Plans.
(a) Except for the Existing Plans, none of the LRS Companies
maintains, or is bound by, any Employee Benefit Plan. All of the Existing Plans
are and at all times have been in compliance in all material respects with
ERISA, the Code and all other applicable Laws. All of the Existing Plans which
are intended to meet the requirements of Section 401(a) or 403(a) of the Code
have been determined to be "qualified" within the meaning of the Code, and there
are no facts which would adversely affect the qualified status of any of such
Existing Plans. Any past Employee Benefit Plan that has been terminated was done
so in full compliance with all applicable Laws, and there is no basis for
further liability or obligation of any LRS Company pursuant to any and all past
Employee Benefit Plans. The Disclosure Schedule sets forth all Employee Benefit
Plans that have been terminated and describes the status of such Employee
Benefit Plans, the distribution or retention of monies related thereto, and any
further obligations of the Employee Benefit Plans or any LRS Company in
connection therewith. Each LRS Company has performed all of its respective
obligations under all Existing Plans, and has made appropriate entries in its
Records and financial statements for all obligations and liabilities under such
Existing Plans.
(b) With respect to each Existing Plan, there is no amount of
unfunded benefit liabilities as defined in Section 4001(a)(18) of ERISA, there
has occurred no failure to meet the minimum funding standards of Section 412 of
the Code, there is no "accumulated funding deficiency" within the meaning of
Section 412 of the Code, no such Existing Plan has terminated or has filed a
Notice of Intent to terminate, the Pension Benefit Guaranty Corporation has not
instituted proceedings to terminate any such Existing Plan, and there is no
outstanding liability under Section 4062 of ERISA.
(c) No prohibited transaction within the meaning of Section 4975 of
the Code or Section 406 of ERISA or reportable event as described in Section
4043 of ERISA has occurred with respect to any of the Existing Plans.
(d) None of the LRS Companies has any direct, indirect, actual or
contingent liability with respect to any of the Existing Plans other than to
make payments to the Existing Plans or benefit payments from the Existing Plans
in accordance with the terms thereof.
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(e) None of the LRS Companies is contributing to, nor has any of
the LRS Companies contributed to, any "multiemployer plan" as defined in Section
4001(a)(3) of ERISA.
(f) Neither any LRS Company nor any Existing Plan provides or has
any obligation to provide (or contribute to the cost of) post-retirement (or
post-termination of service) welfare benefits with respect to current or former
employees of any LRS Company, including without limitation, post-retirement
medical, dental, life insurance, severance, or any similar benefit, whether
provided on an insured or self-insured basis.
(g) There are no pending or, to the Knowledge of LRS, threatened
claims with respect to any of the Existing Plans, other than claims for benefits
arising in the ordinary course of Business.
4.14 No Violation of Law.
(a) Neither any LRS Company, its properties, its products, nor the
operation of the Business, violates in any material respect any Permits, any Law
(including FDA Laws), governmental specification, or any decree, judgment,
order, or similar restriction of any court or governmental agency. To the
Knowledge of LRS, no LRS Company is currently the subject of an inspection or
inquiry regarding violations or alleged violations of any Law by any other
state, federal or local agency.
(b) Since January 1, 1995, no LRS Company has been the subject of
an Occupational and Safety Health Administration (or similar agency) inspection
or was found by any agency to be in violation of any material occupational
safety or health Law.
(c) Since January 1, 1995, to the Knowledge of LRS, no LRS Company
has been the subject of an inspection or inquiry regarding violations or alleged
violations of any Law by the Federal Trade Commission, Food & Drug
Administration, or similar federal, state, or local agency, nor has any LRS
Company been alleged (in writing) or been found by such agency to be in
violation of any material Law. All product specifications, manufacturing
standards, and testing procedures used in connection with the Business, and the
products of the LRS Companies, comply in all material respects with all
applicable Laws, including without limitation the requirements of Title 21 of
the United States Code, and regulations promulgated thereunder, regarding the
regulation of medical devices.
(d) Since January 1, 1995, no LRS Company nor any Person acting on
its behalf has been a party to any illegal payments to any governmental official
or agency.
4.15 Brokers. None of the LRS Companies has incurred any brokers',
finders' or any similar fee in connection with the transactions contemplated by
this Agreement.
4.16 Taxes.
(a) Each of the LRS Companies has timely and properly filed all
federal, state, local and foreign tax returns (including but not limited to
income, franchise, sales, payroll, employee withholding, social security and
unemployment) which were known to be required to be filed. All such tax returns
are true, complete, and correct in all material respects. Each of the LRS
Companies has paid or made adequate provision, in reserves reflected in
accordance with GAAP and consistent with Section 4.7(a) hereof, in the financial
statements that are part of the Financial Information, for the payment of all
taxes (including interest and penalties) and withholding amounts owed by it or
assessable against it, and the reserves for taxes reflected in the Closing
Balance Sheet will be reflected in accordance with GAAP and consistent with
Section 4.7(a) hereof. No tax deficiencies have been proposed or assessed
against any of the LRS Companies and to the Knowledge of LRS, there is no basis
in fact for the assessment of any tax or penalty tax against any of the LRS
Companies. LRS has made available to SYBRON all information with respect to
issues which have been raised in any prior tax audit.
(b) None of the LRS Companies has been audited within the past five
(5) years in connection with any tax return. None of the LRS Companies has been
requested to give, or has consented to, any extension of the statute of
limitation with respect to any open tax returns.
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(c) There are no tax Liens upon any property or assets of any of
the LRS Companies except for Liens for current taxes not yet due and payable.
(d) Each of the LRS Companies has properly withheld and timely paid
all withholding and employment taxes which it was required to withhold and pay
relating to salaries, compensation and other amounts heretofore paid to its
employees or other Persons. All Forms W-2 and 1099 required to be filed with
respect thereto have been timely and properly filed.
(e) None of the LRS Companies is a party to any agreement relating
to allocating or sharing any taxes.
(f) Subject to the election of the holders of 75% of the LRS Common
Stock, as of the Closing none of the LRS Companies will be a party to any
Contract that could result, on account of the Merger, separately or in the
aggregate, in the payment of any "excess parachute payments" within the meaning
of Section 280G of the Code.
(g) None of the LRS Companies has any liability for taxes of any
kind of any Person other than the LRS Companies under any Contract, under
Treasury Regulations Section 1.1502-6 (or any similar provision of Law), or
otherwise.
4.17 Intangible Assets.
(a) The Disclosure Schedule sets forth all patents, patent
applications, trade names, trademarks, trade designations, logos, service marks,
trademark and service mark applications, copyrights, and copyright applications
owned by any LRS Company, used by any LRS Company in the conduct of the
Business, or owned by any LRS Company employee and related to the Business.
(b) The LRS Companies own, or have a valid license to, the right,
title, and interest in and to each of the patents, trademarks, trade names,
copyrights, and applications for the foregoing set forth in the Disclosure
Schedule.
(c) Except as set forth in the Disclosure Schedule, neither any LRS
Company nor the Business infringes on any intellectual property rights of others
in any material respect. To the Knowledge of LRS, there are no claims, demands
or proceedings instituted, pending or threatened by any third party pertaining
to or challenging the rights of any LRS Company to any of the Intangible Assets.
To the Knowledge of LRS, no facts exist which would render any of the Intangible
Assets invalid or unenforceable.
(d) No royalty, commission, or payment of any kind is due or could
become due for the use of any of the products sold by any LRS Company except as
set forth in the Disclosure Schedule.
4.18 Product Matters.
(a) The Product Warranty Claims summary included in the Disclosure
Schedule sets forth an accurate summary (in dollars) of product claims and
returns during the periods set forth on said summary.
(b) All instances of Product Liability Matters involving any LRS
Company that were pending as of January 1, 1995, or for which notice has been
received by any LRS Company since January 1, 1995, if any, are described in the
Disclosure Schedule.
(c) Since January 1, 1995, no LRS Company has experienced any
material product recalls, rework, or post-sale warnings or similar actions nor
has it been requested or required to issue any product recalls, rework, or
post-sale warnings by the Food & Drug Administration or any other regulatory
authority.
(d) To the Knowledge of LRS, no facts or circumstances exist that
would cause a material Product Warranty Claim, Product Liability Matter or
product recall to occur prior to or after the Effective Time of
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Merger except as shall be adequately and specifically reserved for on the
Closing Balance Sheet or set forth in the Disclosure Schedule.
4.19 Investments. Except for the Existing Investments, none of the LRS
Companies owns, or has any right or obligation to acquire, any material
Investment.
4.20 Labor Matters.
(a) Each LRS Company is in material compliance with all Laws
regarding employment and employment practices, terms and conditions of
employment, wages and hours, and has not since January 1, 1995 and, to the
Knowledge of LRS, is not engaged in any unfair labor practice.
(b) Except as set forth on the October 31 Balance Sheet or the
Closing Balance Sheet, there is no present or former employee of any of the LRS
Companies who has any claim against the LRS Companies (whether under Law, under
any employee agreement or otherwise) on account of or for: (i) overtime pay,
other than overtime pay for the current payroll period; (ii) wages or salaries,
other than wages or salaries for the current payroll period; or (iii) vacations,
sick leave, time off or pay in lieu of vacation, sick leave or time off, other
than vacation, sick leave or time off (or pay in lieu thereof) earned in the
twelve-month period immediately preceding the date of this Agreement.
(c) Except as described in the Disclosure Schedule, there are no
pending and unresolved claims by any Person against any of the LRS Companies
arising out of any Law relating to discrimination with respect to employees or
employee practices or occupational or safety and health standards. There is no
pending or, to the Knowledge of LRS, threatened, nor since January 1, 1995 has
any of the LRS Companies experienced any, labor dispute, strike or work stoppage
which affects or may affect the Business in any material respect or which may or
would interfere with the continued operation of any of the LRS Companies in any
material respect.
(d) There is not now pending or, to the Knowledge of LRS,
threatened, any charge or complaint against any of the LRS Companies by or
before the National Labor Relations Board or any representative thereof, or any
comparable agency or authority. To the Knowledge of LRS, no union organizing
activities are in process or contemplated and no petitions have been filed for
union organization or representation of employees of any of the LRS Companies
not presently organized, and none of the LRS Companies has committed any unfair
labor practices which have not heretofore been corrected and fully remedied.
4.21 Indebtedness. Except for the Existing Indebtedness, none of the
LRS Companies has any Indebtedness in excess of $5,000.
4.22 Permits. The Permits constitute all material licenses, permits,
approvals, qualifications, authorizations and governmental specifications which
the LRS Companies currently have and need for the conduct of the Business as
currently conducted. Each of the Permits is in full force and effect, and the
LRS Companies are in compliance in all material respects with all obligations,
restrictions or requirements thereof. The Permits do not require the
expenditures of funds except as shall be adequately reserved for on the Closing
Balance Sheet. Copies of the Permits have been provided to SYBRON.
4.23 Disclosure. To the Knowledge of LRS, LRS has furnished to SYBRON
complete and accurate copies or originals of all documents and/or information
requested by SYBRON. To the Knowledge of LRS, no statement of fact by LRS
contained in this Agreement or the Disclosure Schedule omits or will omit to
state a material fact necessary in order to make the statements herein or
therein contained, in the light of the circumstances under which they were made,
not misleading as of the date to which it speaks.
4.24 Information Supplied. None of the information supplied or to be
supplied by or on behalf of LRS for inclusion or incorporation by reference in:
(a) the Registration Statement will, at the time the Registration Statement is
filed with the SEC and at the time it becomes effective under the Securities
Act, contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and (b) the Proxy Statement will, at the date mailed to the LRS
Stockholders and at the time of the LRS
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Special Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading. The Proxy Statement will comply as to form in all material
respects with the requirements of Form S-4 under the Securities Act, as such
requirements relate to LRS in connection therewith, and the rules and
regulations thereunder.
4.25 Vote Required. The only approvals of the holders of any class or
series of capital stock or other securities of LRS necessary to approve the
Merger, this Agreement, and the transactions contemplated by this Agreement are
as follows:
(a) The affirmative vote of the holders of a majority of the
outstanding shares of LRS Common Stock;
(b) the approval by the holders of at least 75% of the LRS
Preferred Stock;
(c) the approval by the holders of at least 75% of the LRS Common
Stock held by Liberty Partners Holdings 5, L.L.C., Robert B. Stockman, Robert F.
Johnston, Kenneth Rainin, Joseph Mandato, Edward P. Weinsoff, William W. Crouse,
Robert Clarkson, Donna Petkanics, WS Investments Company 94A, or any permitted
transferee thereof; and
(d) the consents identified in Section 8.15 hereof.
4.26 Accounting Matters. The factual representations and statements of
LRS made (or to be made) to Ernst & Young LLP with respect to pooling of
interests accounting matters (as substantially set forth on the form of
representation letter attached to the Disclosure Schedule) are (or will be when
made) true and correct in all material respects as if said representations were
made directly to SYBRON.
4.27 Environmental Matters.
(a) Except as set forth in the Disclosure Schedule, each of the LRS
Companies, its assets and properties, and the Business: (i) is in compliance in
all material respects with all applicable Environmental Laws; and (ii) has not
received any written communication from a governmental authority that alleges
that it is not in compliance in any material respect with applicable
Environmental Laws. Except as set forth in the Disclosure Schedule, there are no
conditions existing or that have existed which would subject any of the LRS
Companies to damages, penalties, injunctive relief, or cleanup costs under any
Environmental Laws or pursuant to any third-party claim, or which require or are
likely to require reporting, cleanup, removal, remedial action, or other
response pursuant to Environmental Laws or a third party claim.
(b) Except as set forth in the Disclosure Schedule, there is no
material Environmental Claim pending or, to the Knowledge of LRS, threatened,
against any of the LRS Companies or against any Person whose liability for any
Environmental Claim any of the LRS Companies has retained or assumed either
contractually or by operation of Law, or against any real or personal property
or operations which any of the LRS Companies owns, leases or manages.
(c) Neither any LRS Company nor, to the Knowledge of LRS, any other
Person has caused or permitted Hazardous Materials to be stored, deposited,
treated, recycled, or disposed of, or has caused or permitted any Environmental
Releases of Hazardous Materials, on, under, or at any Building, or at any other
real estate previously owned or occupied by an LRS Company or at any time in its
care, custody, or control.
(d) No real property at any time owned, operated, used or
controlled by any of the LRS Companies is currently listed on the National
Priorities List or the Comprehensive Environmental Response, Compensation and
Liability Information System, both promulgated under CERCLA, or on any analogous
list, and none of the LRS Companies has received any written notice from any
Person under or relating to CERCLA or any comparable Law.
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(e) Except as set forth in the Disclosure Schedule, no off-site
location at which any of the LRS Companies has disposed or arranged for the
disposal of any waste is listed on the National Priorities List or on any
analogous list. None of the LRS Companies has received any written notice from
any Person with respect to any off-site location, of potential or actual
liability or a written request for information from any Person under or relating
to CERCLA or any comparable Law.
(f) The Disclosure Schedule (i) identifies each agreement to which
any LRS Company is a party for the storage, transportation, treatment or
disposal of any Hazardous Material or hazardous byproduct, (ii) identifies each
matter which to the Knowledge of LRS, is reasonably likely to result in material
future costs to the LRS Companies of compliance with, and environmental cleanup
and response under, Environmental Laws to be materially in excess of such costs
on an historical basis, and (iii) contains a good faith estimate of such costs.
(g) This Section 4.27 is the sole and exclusive representation
being made by LRS in this Agreement with respect to environmental matters,
except for Section 4.22 hereof.
4.28 Accounts. All Accounts have arisen from bona fide transactions by
the LRS Companies in the ordinary course of Business.
4.29 Product Specifications.
(a) The products of the LRS Companies meet all product and/or
process specifications that they purport to meet.
(b) The Disclosure Schedule sets forth the products of the LRS
Companies that have received a premarket notification 510(k) clearance as set
forth in 21 CFR Section 807.81 et seq., and sets forth all products that have
not received a 510(k) clearance and provides an explanation justifying the
reason(s) why no 510(k) clearance is necessary.
(c) Copies of all such 510(k) clearances and submissions (and
related correspondence) have been provided to SYBRON. With respect to the LRS
Company products having 510(k) clearance, no modifications have been made to
such products that would require resubmittal to the U.S. Food and Drug
Administration.
(d) The manufacturing facilities of the LRS Companies are ISO 9000
registered and have been certified in accordance with the European Community
Medical Devices Directive 93/42/EEC for "CE" marking of orthodontic appliance
systems. On or before the Closing, the LRS Companies and their suppliers (except
for Reliance Adhesives, Inc.) will have completed all actions and will possess
all authorizations and certifications necessary to enable the LRS Companies to
place the "CE" mark on their products.
4.30 Distributors; Manufacturer's Representatives.
(a) The Disclosure Schedule: (i) lists all Persons that purchased
any LRS Company products relating to the Business as distributors during the
last fiscal year of LRS; (ii) lists all non-employee Persons that serve as a
manufacturer's representative for LRS Company products relating to the Business;
and (iii) lists any written arrangement or agreement and describes and sets
forth the terms of each material oral arrangement or agreement with each such
distributor or representative.
(b) Except as specifically indicated in the Disclosure Schedule,
there are no distributors or non- employee sales representatives who have been
granted the right to purchase products from any LRS Company for resale or to
serve as a manufacturer's representative for LRS Company products.
(c) All Contracts with Business distributors and/or manufacturer's
representatives can be terminated by the LRS Companies upon no more than sixty
(60) days' notice, with or without cause, without liability, penalty, or premium
of any nature whatsoever.
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4.31 Transactions with Related Parties. Except as set forth on the
Disclosure Schedule, no LRS Company is a party to any transaction or proposed
transaction, including, without limitation, the leasing of property, the
purchase or sale of raw materials or finished goods, the furnishing of services
or the borrowing or lending of money, with any LRS Company director or officer,
or, to the Knowledge of LRS, any Person or entity who is an affiliate thereof.
No LRS Stockholder or any director or officer of any LRS Company, nor, to the
Knowledge of LRS, any of their affiliates, own or have any ownership interest in
any corporation or other entity which is in competition with any LRS Company or
which is engaged in a related or similar business to that of any LRS Company,
and none of such Persons, or any of their affiliates, has entered into any
agreement, commitment, or understanding contemplating such ownership or
ownership interest.
4.32 Year 2000 Compliance. Except as set forth in the Disclosure
Schedule, all of the material computer hardware and software systems of the LRS
Companies (including, without limitation, those related to the Business's
facilities, equipment, manufacturing processes, quality control activities,
accounting and bookkeeping, Records and record keeping activities) are presently
or will be prior to or on the Closing Date Year 2000 Compliant (as defined
below). Any modifications to make the hardware and software systems Year 2000
Compliant, including date century and multi-century formulas and date values
that reflect the century, will be identified and disclosed to SYBRON and will be
made prior to the Closing Date. "Year 2000 Compliant" means the ability of the
hardware and software systems to provide the following functions: (a)
consistently handle date information for all dates before, on, and after January
1, 2000, including but not limited to accepting date input, providing date
output, and performing calculations on dates; (b) function accurately and
without interruption before, during, and after January 1, 2000, without any
change in operations associated with the advent of the new century; (c) respond
to two-digit date input in a way that resolves any ambiguity as to century in a
disclosed, defined, and predetermined manner; and (d) store and provide output
of date information in ways that are unambiguous as to century.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
SYBRON AND ACQUISITION
SYBRON and ACQUISITION hereby represent and warrant to LRS
as follows:
5.1 Organization.
(a) Each of SYBRON and ACQUISITION is a corporation duly and
validly organized and existing under the Laws of its respective state of
incorporation, and is qualified to do business as a foreign corporation and is
in active status or good standing (as the case may be) in all jurisdictions
where the ownership or leasing of property or the conduct of its business
requires qualification as a foreign corporation except where the failure to so
qualify does not and will not have a material adverse effect.
(b) Each of SYBRON and ACQUISITION has full corporate power and
authority and all permits, licenses, approvals, authorizations, and
registrations necessary to carry on its business as it is now conducted and to
own, lease and operate its assets and properties.
(c) Copies of the Articles or Certificate of Incorporation and
Bylaws of each of SYBRON and ACQUISITION certified by the Secretary of SYBRON as
of the date of this Agreement, are being delivered by SYBRON to LRS
contemporaneously with the execution and delivery of this Agreement and such
copies are complete and correct copies of such documents in effect as of the
date of this Agreement.
5.2 Capitalization.
(a) The entire authorized capital stock of SYBRON consists of: (i)
110,000,000 shares of Common Stock, par value $0.01 per share, of which
48,175,503 shares were issued and outstanding on December 1, 1997; and (ii)
20,000,000 shares of Preferred Stock, par value $0.01 per share, none of which
are issued and outstanding. At the 1998 annual meeting of shareholders to be
held on January 30, 1998, the shareholders of SYBRON will vote
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upon a proposed amendment to SYBRON's Articles of Incorporation to increase the
number of authorized shares of Common Stock to 250,000,000. If the increased
authorization is approved by the shareholders, the Board of Directors of SYBRON
anticipates declaring a two-for-one stock split at its regular meeting following
the annual meeting of shareholders.
(b) The entire authorized capital stock of ACQUISITION consists of
100 shares of Common Stock, par value $1.00 per share, of which 100 shares are
issued and outstanding, all of which are owned by SYBRON.
(c) All of the shares of SYBRON Stock to be issued pursuant to this
Agreement will be, when issued: (i) duly authorized, validly issued and fully
paid; and (ii) nonassessable, except as provided in Section 180.0622(2)(b) of
the Wisconsin Business Corporation Law as judicially interpreted.
5.3 Authorization; Enforceability. The execution, delivery and
performance of this Agreement by SYBRON and ACQUISITION and all of the documents
and instruments required by this Agreement to be executed and delivered by
SYBRON and ACQUISITION: (a) are within the corporate power of SYBRON and
ACQUISITION; (b) have been duly authorized by all necessary corporate action by
SYBRON and ACQUISITION; and (c) do not require any approval of the shareholders
of SYBRON. This Agreement is, and the other documents and instruments required
by this Agreement to be executed and delivered by SYBRON and ACQUISITION will
be, when executed and delivered by SYBRON and ACQUISITION, the valid and binding
obligations of SYBRON and ACQUISITION, enforceable against SYBRON and
ACQUISITION in accordance with their respective terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency or similar Laws affecting the
enforcement of creditors' rights in general, moratorium Laws or by general
principles of equity.
5.4 No Violation or Conflict. Subject to the receipt of the approvals
and consents described in Section 8.9 of this Agreement and the filing of the
Certificate of Merger as described in this Agreement, the execution, delivery
and performance of this Agreement by SYBRON and ACQUISITION:
(a) do not and will not conflict with or violate, breach,
constitute a default under, or give rise to a right of termination or
acceleration of an obligation under, any Law, the Articles of Incorporation or
Bylaws of SYBRON, the Certificate of Incorporation or Bylaws of ACQUISITION or
any material contract or agreement to which SYBRON or ACQUISITION is a party or
by which either of them is bound; and/or
(b) do not require any approvals or consents of third parties, or
any declarations or filing with any court, governmental body or agency or other
public or private body, entity, or Person.
5.5 Litigation. To the knowledge of SYBRON, there are no actions, suits
or proceedings against SYBRON or ACQUISITION, or both, by any Person which
question the validity, legality or propriety of the transactions contemplated by
this Agreement.
5.6 SYBRON SEC Reports.
(a) The Sybron SEC Reports did not or will not, as the case may be,
contain as of their respective dates any untrue statement of a material fact or
omit to state 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. The SYBRON SEC Reports were or will be, as the case may
be, filed in a timely fashion and complied or will comply, as the case may be,
as to form in all material respects with all applicable rules of the SEC. SYBRON
has supplied or will supply prior to the Closing true and correct copies of all
SYBRON SEC Reports.
(b) The audited consolidated financial statements and unaudited
consolidated interim financial statements of SYBRON included in the Sybron SEC
Reports have been or will be, as the case may be, prepared in accordance with
generally accepted accounting principles applied on a consistent basis (except
as may be indicated therein or in the notes thereto and except with respect to
unaudited statements as permitted by Form 10-Q of the SEC) and fairly present in
all material respects the consolidated financial position of SYBRON as of the
dates thereof and the consolidated results of its operations and changes in
financial position for the periods then ended, subject, in the case
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of the unaudited consolidated interim financial statements, to normal year-end
adjustments and any other adjustments described therein.
5.7 Disclosure. No statement of fact by SYBRON or ACQUISITION contained
in this Agreement omits to state a material fact necessary in order to make the
statements herein contained, in light of the circumstances under which they were
made, not misleading as of the date to which it speaks.
5.8 Information Supplied. None of the information supplied or to be
supplied by or on behalf of SYBRON for inclusion or incorporation by reference
in: (a) the Registration Statement will, at the time the Registration Statement
is filed with the SEC and at the time it becomes effective under the Securities
Act, contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; and (b) the Proxy Statement will, at the date mailed to the LRS
Stockholders and at the time of the LRS Special Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. The Registration
Statement, including the Proxy Statement insofar as it constitutes the
prospectus of SYBRON, will comply as to form in all material respects with the
provisions of the Securities Act and the rules and regulations thereunder.
5.9 Brokers. Neither SYBRON nor ACQUISITION has incurred any brokers',
finders' or any similar fee in connection with the transactions contemplated by
this Agreement.
5.10 No Adverse Change. Since October 31, 1997, there has been no
material adverse change in the condition (financial or otherwise), assets,
liabilities, business, operations, earnings or prospects of SYBRON and its
consolidated Subsidiaries, taken as a whole.
ARTICLE VI
CONDUCT OF BUSINESS BY THE LRS COMPANIES
PENDING THE MERGER
Except with the written consent of SYBRON (which shall not be
unreasonably withheld or delayed), from and after the date of this Agreement and
until the Effective Time of Merger, LRS shall, and shall cause each of the other
LRS Companies to:
6.1 Carry on in Ordinary Course. Use reasonable efforts to carry on its
Business in the ordinary course and substantially in the same manner as
heretofore conducted.
6.2 Use of Assets. Use reasonable efforts to use, operate, maintain and
repair all of its material assets and properties in an ordinary course of
business. LRS shall be permitted to use available cash of the LRS Companies to
accelerate the payment of portions of the Certain Indebtedness.
6.3 No Default. Use reasonable efforts to not do any act or omit to do
any act, or permit any act or omission to act, which could cause a breach of any
of the Existing Contracts, and, if a breach of any Existing Contracts should
arise, shall use reasonable efforts to timely cure every such breach.
6.4 Existing Insurance Policies. Use reasonable efforts to maintain all
of the Existing Insurance Policies or comparable replacement policies in full
force and effect.
6.5 Employment Matters. Not: (a) except in the ordinary course of
business in a manner consistent with past custom and practice, or as described
in the Disclosure Schedule, decrease, or grant any increase, in the rate of pay
of any of its employees; (b) institute any new Employee Benefit Plan or amend
any Existing Plan; or (c) enter into or modify any written employment
arrangement with any Person.
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6.6 Contracts. Not enter into any material Contract or engage in any
material transaction not in the usual and ordinary course of business and
consistent with its normal Business practices and, except as described in the
Disclosure Schedule, not purchase, lease, sell or dispose of any material
capital asset.
6.7 Indebtedness; Investments. Not: (a) make any Investment except in
the ordinary course of its Business; or (b) create, incur or assume any
Indebtedness, except for Indebtedness incurred in the ordinary course of its
Business by any LRS Company as described in the Disclosure Schedule.
6.8 Preservation of Relationships. Use reasonable efforts to preserve
its business organization intact, to retain the services of its present officers
and key employees and to preserve the goodwill of suppliers, customers,
creditors and others having Business relationships with it.
6.9 Compliance with Laws. Comply in all material respects with all
applicable Laws.
6.10 Taxes. Timely and properly file all federal, state, local and
foreign tax returns which are required to be filed, and pay or make provision in
accordance with GAAP for the payment of all taxes owed by it except for taxes
being disputed in good faith provided notice thereof is given to SYBRON.
6.11 Amendments. Not amend its Articles of Incorporation or Bylaws.
6.12 Dividends; Redemptions; Issuance of Stock. Not:
(a) except upon exercise of outstanding LRS Options, issue any
additional shares of stock of any class or grant any warrants, options or rights
to subscribe for or acquire any additional shares of stock of any class;
(b) declare or pay any dividend or make any capital or surplus
distributions of any nature, except for: (i) cash dividends by AC, AC Mexico,
ACIE, AC Netherlands, AC Europe, or AC GmbH to LRS or AC; and (ii) regular cash
dividends by LRS on the outstanding LRS Preferred Stock; or
(c) directly or indirectly redeem, purchase, or otherwise acquire,
recapitalize, or reclassify any of its capital stock or liquidate in whole or in
part.
ARTICLE VII
CERTAIN MATTERS PENDING THE CLOSING
7.1 Consents and Approvals. Subject to Section 3.14 hereof, the parties
shall each give any notices to, make any filings with, and use their respective
reasonable efforts to obtain those authorizations, consents and approvals
described in Section 8.9(a) hereof.
7.2 Exclusive Dealing. So long as this Agreement has not been
terminated in accordance with Section 10.1 hereof, LRS, for and on behalf of
itself and all other LRS Companies, and their officers and agents, agrees not to
(and will not permit any employee, officer, director, agent or other Person
acting on its behalf to) directly or indirectly, solicit, entertain, or
encourage inquiries or proposals or enter into an agreement or negotiate with
any other Person with respect to the sale of all or any portion of the LRS
Common Stock and/or LRS Preferred Stock, or the Business, whether such
transaction takes the form of a sale of stock, merger, consolidation, sale of
assets or otherwise.
7.3 Cooperation. The parties shall:
(a) fully cooperate with each other and their respective legal
counsel and accountants in connection with any steps to be taken as part of
their obligations under this Agreement;
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(b) subject to Section 3.14 hereof, in the case of LRS, use its
reasonable efforts to satisfy the conditions set forth in Article VIII, and in
the case of SYBRON, use its reasonable efforts to satisfy the conditions set
forth in Article IX; and
(c) cooperate in all reasonable respects with each other party in
such party's efforts to satisfy the conditions to be satisfied by the other
party.
7.4 Exchange Agreement. SYBRON and the LRS Representatives shall enter
into and deliver the Exchange Agreement in sufficient time to enable the
Exchange Agent to perform its duties thereunder prior to Closing.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
SYBRON AND ACQUISITION
Each and every obligation of SYBRON and ACQUISITION to be performed
on the Closing Date shall be subject to the satisfaction prior to or at the
Closing of the following express conditions precedent:
8.1 Compliance with Agreement. LRS shall have performed and complied in
all material respects with all of its obligations under this Agreement which are
to be performed or complied with by it prior to or on the Closing Date.
8.2 Proceedings and Instruments Satisfactory. All proceedings,
corporate or other, to be taken in connection with the transactions contemplated
by this Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to SYBRON, and LRS shall have made available
to SYBRON for examination the originals or true and correct copies of all
documents SYBRON may reasonably request in connection with the transactions
contemplated by this Agreement.
8.3 No Litigation. No suit, action or other proceeding shall be pending
or overtly threatened before any court in which the consummation of the
transactions contemplated by this Agreement is restrained or enjoined or in
which the relief requested is to restrain, enjoin or prohibit the consummation
of the transactions contemplated by this Agreement.
8.4 Representations and Warranties of LRS. The representations and
warranties made by LRS in this Agreement (as updated through any Disclosure
Schedule Change) shall be true and correct in all material respects as of the
Closing Date, with the same force and effect as though said representations and
warranties had been made on the Closing Date unless the failure to be true and
correct in all material respects does not have an LRS Material Adverse Effect.
8.5 No LRS Material Adverse Effect. During the period from the date of
this Agreement to the Closing Date, there shall not have occurred, and there
shall not exist on the Closing Date, any LRS Material Adverse Effect.
8.6 Approval of LRS Stockholders; Certificate of Merger.
(a) This Agreement, the Merger, and the transactions contemplated
by this Agreement shall have received the requisite approvals and authorizations
of the LRS Stockholders, and no more than two percent (2%) of the then
outstanding shares of LRS Common Stock shall be Dissenting Shares and no more
than two percent (2%) of the outstanding shares of LRS Preferred Stock shall be
Dissenting Shares.
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(b) The holder(s) of the requisite amount of LRS Preferred Stock
shall not have asserted their right to require LRS to redeem their LRS Preferred
Stock pursuant to Article C, Section 4I of LRS' Amended and Restated Certificate
of Incorporation.
(c) The Certificate of Merger shall have been executed and
delivered by LRS.
8.7 Deliveries at Closing. LRS shall have delivered to SYBRON the
following documents, each properly executed and dated the Closing Date:
(a) the LRS Closing Certificate;
(b) the LRS Counsel Opinions;
(c) the Registration Rights Agreement;
(d) evidence of delivery of the LRS Warrant to the Exchange Agent;
(e) the Affiliate Letters from each Person who is an Affiliate;
(f) the Escrow Agreement;
(g) the executed representations letters required by Quarles &
Brady in order for it to render the Tax Opinion Letter;
(h) such releases and other instruments evidencing payment in full
of the Certain Indebtedness and release of all Liens related thereto as SYBRON
may reasonably request; and
(i) such other documents and instruments as SYBRON may reasonably
request.
8.8 Other Documents. LRS shall have delivered to SYBRON such
certificates and documents of officers of LRS and public officials as shall be
reasonably requested by SYBRON to establish the existence of the LRS Companies
and the due authorization of this Agreement and the transactions contemplated by
this Agreement by LRS.
8.9 Certain Approvals.
(a) There shall have been secured (i) such material approvals,
authorizations, consents and waivers from all appropriate state, federal, and
foreign regulatory authorities as may be required by Law, and (ii) such
approvals, authorizations, consents and waivers from all other Persons
identified in the Disclosure Schedule as a Person from whom an approval,
authorization, consent or waiver is required and specifically designated on the
Disclosure Schedule as a required consent for Closing.
(b) The Registration Statement shall have been declared effective
under the Securities Act and shall not be the subject of any stop order or
proceedings to effect a stop order, and the Sybron Stock issuable pursuant to
the Merger shall have been registered or shall be exempt from registration under
applicable state "blue sky" or securities Laws.
(c) All necessary requirements of the HSR Act shall have been
complied with and any "waiting periods" applicable to the Merger and to the
transactions described in this Agreement which are imposed by the HSR Act shall
have expired prior to the Closing Date or shall have been terminated by the
appropriate agency.
(d) No permission, approval, determination, consent or waiver
received pursuant to Sections 8.9(a), 8.9(b) or 8.9(c) of this Agreement shall
contain any condition applicable to the LRS Companies, SYBRON or ACQUISITION, or
any one or more of them, which is, in the reasonable judgment of SYBRON,
materially adverse in any manner to the LRS Companies, SYBRON or ACQUISITION.
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8.10 Listing. SYBRON shall have received notice from the New York Stock
Exchange that the shares of Sybron Stock to be issued pursuant to this Agreement
are approved for listing on the New York Stock Exchange subject to official
notice of issuance.
8.11 Closing Balance Sheet. The parties shall have agreed upon the
contents of the Closing Balance Sheet.
8.12 Accountant Letters. SYBRON shall have received a copy of each of
the following letters from Ernst & Young LLP, each of which shall be in form and
substance reasonably satisfactory to SYBRON and shall contain information
concerning the financial condition of LRS: (a) the letter described in Section
3.9(a) of this Agreement; (b) a similar letter dated the date of the mailing of
the Proxy Statement; (c) a similar letter dated the Closing Date; (d) the
pooling letter to be addressed to LRS from Ernst & Young LLP; and (e) the
executed "representation letter" referenced in Section 4.26 hereof.
8.13 Pooling Treatment. SYBRON shall have received assurance from KPMG
Peat Marwick LLP to the effect that the Merger will qualify for
pooling-of-interests accounting treatment if consummated in accordance with this
Agreement.
8.14 Fractional Shares. The aggregate of the fractional share interests
in Sybron Stock to be paid in cash pursuant to Section 2.8(e) of this Agreement
shall not be more than two percent (2%) of the maximum aggregate number of
shares of Sybron Stock which could be issued as a result of the Merger.
8.15 Consents. LRS shall have obtained, and delivered to SYBRON,
consents from LRS Optionholders holding LRS Options covering not less than 400
shares of LRS Common Stock and consents from all holders of Nonvested Restricted
Shares, in each case approving the consummation of the transactions described in
this Agreement and, as appropriate, the conversion or exchange of the Nonvested
Restricted Shares and LRS Options as described in Sections 2.6 and 2.7 hereof.
8.16 Other Conditions.
(a) LRS shall have obtained and delivered to SYBRON documentation
acceptable to SYBRON effecting the termination of all employment, consulting and
other contractual arrangements with Gordie Nye, consistent with the items set
forth on the Disclosure Schedule.
(b) In the event audited LRS financial statements for the fiscal
year ending December 31, 1997 are not available prior to Closing, LRS shall
deliver to SYBRON an inventory count for AC Europe that has been certified by
LRS's external auditors.
(c) The Amendment to License Agreement dated as of January 13,
1998 by and between Damon Family Limited Partnership and AC shall be in full
force and effect and neither party shall be in default thereof. Additionally,
the Consent to Transfer dated January 13, 1998 given by the Damon Family Limited
Partnership shall be in full force and effect.
(d) The agreement dated as of May 1, 1997 by and between AC and
Massachusetts Financing Corporation (d/b/a "OFP") shall have been amended to
contain terms and conditions reasonably acceptable to SYBRON.
(e) SYBRON shall have confirmed to its reasonable satisfaction
that, as of the Closing, none of the LRS Companies will be a party to any
Contract that could result, on account of the Merger, separately or in the
aggregate, in the payment of any "excess parachute payments" within the meaning
of Section 280G of the Code.
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ARTICLE IX
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF LRS
Each and every obligation of LRS to be performed on the Closing
Date shall be subject to the satisfaction prior to or at the Closing of the
following express conditions precedent:
9.1 Compliance with Agreement. SYBRON and ACQUISITION shall have
performed and complied in all material respects with all of their obligations
under this Agreement which are to be performed or complied with by them prior to
or on the Closing Date.
9.2 Proceedings and Instruments Satisfactory. All proceedings,
corporate or other, to be taken in connection with the transactions contemplated
by this Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to LRS, and SYBRON and ACQUISITION shall have
made available to LRS for examination the originals or true and correct copies
of all documents which LRS may reasonably request in connection with the
transactions contemplated by this Agreement.
9.3 No Litigation. No suit, action or other proceeding shall be pending
before any court in which the consummation of the transactions contemplated by
this Agreement is restrained or enjoined or in which the relief requested is to
restrain, enjoin or prohibit the consummation of the transactions contemplated
by this Agreement.
9.4 Representations and Warranties of SYBRON and ACQUISITION. The
representations and warranties made by SYBRON and ACQUISITION in this Agreement
shall be true and correct in all material respects as of the Closing Date, with
the same force and effect as though such representations and warranties had been
made on the Closing Date unless the failure to be true and correct in all
material respects does not, taken as a whole, have a material adverse effect.
9.5 Approval of LRS Stockholders; Certificate of Merger. This
Agreement, the Merger and the other transactions contemplated by this Agreement
shall have received the requisite approval and authorization of the LRS
Stockholders. The Certificate of Merger and the Plan of Merger shall have been
executed and delivered by ACQUISITION.
9.6 Deliveries at Closing. SYBRON and ACQUISITION shall have delivered
to LRS the following documents, each properly executed and dated the Closing
Date:
(a) the SYBRON Closing Certificate;
(b) the SYBRON Counsel Opinion;
(c) the Registration Rights Agreement;
(d) the Escrow Agreement;
(e) documentation and instruments evidencing the payment of the
Certain Indebtedness, Expenses, and other payments described on EXHIBIT 11
hereto; and
(f) such other documents and instruments as LRS may reasonably
request.
9.7 Other Documents. SYBRON shall have delivered to LRS such
certificates and documents of officers of SYBRON and ACQUISITION and of public
officials as shall be reasonably requested by LRS to establish the existence of
SYBRON and ACQUISITION and the due authorization of this Agreement and the
transactions contemplated by this Agreement by SYBRON and ACQUISITION.
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9.8 Certain Approvals.
(a) There shall have been secured (i) such material approvals,
authorizations, consents and waivers from all appropriate state, federal, and
foreign regulatory authorities as may be required by Law, and (ii) such
approvals, authorizations, consents, and waivers from all other Persons
identified in the Disclosure Schedule as a Person from whom an approval,
authorization, consent, or waiver is required and specifically designated on the
Disclosure Schedule as a required consent for Closing.
(b) The Registration Statement shall have been declared effective
under the Securities Act and shall not be the subject of any stop order or
proceedings to effect a stop order, and the Sybron Stock issuable pursuant to
the Merger shall have been registered or shall be exempt from registration under
applicable state "blue sky" or securities Laws.
(c) All necessary requirements of the HSR Act shall have been
complied with and any "waiting periods" applicable to the Merger and to the
transactions described in this Agreement which are imposed by the HSR Act shall
have expired prior to the Closing Date or shall have been terminated by the
appropriate agency.
9.9 Tax Opinion. LRS shall have received the Tax Opinion Letter of
Quarles & Brady, counsel to SYBRON, dated as of the Closing Date, to the effect
that the Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code, and that
SYBRON, ACQUISITION and LRS will each be a party to that reorganization within
the meaning of Section 368(b) of the Code.
9.10 Accountant Letters. LRS shall have received a copy of each of the
following letters from KPMG Peat Marwick LLP, each of which shall be in form and
substance reasonably satisfactory to LRS and shall contain information
concerning the financial condition of SYBRON: (a) the letter described in
Section 3.9(b) of this Agreement; (b) a similar letter dated the date of the
mailing of the Proxy Statement; and (c) a similar letter dated the Closing Date.
9.11 No Material Adverse Change. During the period from the date of
this Agreement to the Closing Date there shall not have occurred any event,
condition or fact which is continuing on the Closing Date and which is
materially adverse to the financial condition of SYBRON and the Subsidiaries of
SYBRON, taken as a whole.
9.12 Listing. SYBRON shall have received notice from the New York Stock
Exchange that the shares of Sybron Stock to be issued pursuant to this Agreement
are approved for listing on the New York Stock Exchange subject to official
notice of issuance.
9.13 Closing Balance Sheet. The parties shall have agreed upon the
contents of the Closing Balance Sheet.
ARTICLE X
TERMINATION; INDEMNIFICATION; MISCELLANEOUS
10.1 Termination. This Agreement may be terminated and the transactions
contemplated by this Agreement may be abandoned at any time prior to the Closing
(whether before or after approval of this Agreement by the LRS Stockholders), as
follows:
(a) by mutual written agreement of SYBRON and LRS;
(b) by either SYBRON or LRS if termination of the waiting period
or clearance under the HSR Act has not been received within sixty (60) days
after the initial filing thereunder;
(c) by LRS pursuant to Sections 2.9(a) or (b), 3.1(a), or 3.12
hereof;
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(d) by SYBRON pursuant to Sections 2.9(a) or 3.5(b) hereof;
(e) by either SYBRON or LRS if the other party is in material
breach of this Agreement and said breach has not been cured within fifteen (15)
days of written notice thereof from the nonbreaching party to the breaching
party; or
(f) by either SYBRON or LRS if the Closing has not occurred on or
before May 1, 1998.
10.2 Rights on Termination; Waiver. If this Agreement is terminated
pursuant to Section 10.1 of this Agreement, all further obligations of the
parties under or pursuant to this Agreement shall terminate without further
liability of any party (including its directors, officers, employees, agents,
legal, accounting or financial advisors or other representatives) to the others,
provided that: (a) the obligations of SYBRON and ACQUISITION contained in
Sections 3.4(b), 3.12, 3.13, 10.2, 10.6, 10.7, 10.8, 10.9, 10.11, 10.12, and
10.14 of this Agreement shall survive any such termination; (b) the obligations
of LRS contained in Sections 3.12, 3.13, 10.2, 10.6, 10.7, 10.8, 10.9, 10.11,
10.12, and 10.14 of this Agreement shall survive any such termination; and (c)
each party to this Agreement shall retain any and all remedies which it may have
for breach of contract provided by Law based on another party's willful failure
to comply with the terms of this Agreement. If any of the conditions set forth
in Article VIII of this Agreement have not been satisfied, SYBRON may
nevertheless elect to proceed with the consummation of the transactions
contemplated by this Agreement and if any of the conditions set forth in Article
IX of this Agreement have not been satisfied, LRS may nevertheless elect to
proceed with the consummation of the transactions contemplated by this
Agreement. Any such election to proceed shall be evidenced by a certificate
signed on behalf of the waiving party by an officer of that party.
10.3 Indemnity by LRS.
(a) SYBRON and the Surviving Corporation shall be indemnified and
held harmless from and against, and shall promptly be defended from and
reimbursed for, any and all losses, damages, costs, expenses, liabilities,
obligations, and claims of any kind (including, without limitation, reasonable
attorneys' fees and other costs and expenses) ("Damages") which the Surviving
Corporation or SYBRON may at any time suffer or incur, or become subject to, as
a result of or in connection with any of the following:
(i) any misrepresentation or breach of any representations or
warranties made by LRS in this Agreement (as updated by any Disclosure Schedule
Change) or in the LRS Closing Certificate;
(ii) any failure by LRS to carry out, perform, satisfy, and
discharge in any material respect any of its covenants, agreements,
undertakings, liabilities, or obligations under this Agreement; and
(iii) any suit, action or other proceeding brought by any
Person arising out of any of the matters referred to in this Section 10.3 of
this Agreement.
(b) SYBRON shall promptly notify the LRS Representatives of any
claim, demand, action, or proceeding for which indemnification will be sought
under this Section 10.3 of this Agreement and, if such claim, demand, action, or
proceeding is a third party claim, demand, action, or proceeding, and (except as
set forth below) if the parties agree that the Escrow Account (or applicable
portion thereof) will be sufficient to fully satisfy the claim, the LRS
Representatives shall have the right (and with the use of the Escrow Account) to
assume the defense thereof using counsel reasonably acceptable to SYBRON. The
assumption of said defense by the LRS Representatives shall constitute an
admission that, subject to the limitations of this Section 10.3, such third
party claim demand, action, or proceeding is an indemnifiable claim by SYBRON.
If either (i) the subject matter of a claim relates to the ongoing business of
SYBRON or the Surviving Corporation (as opposed to the mere payment of money
damages) and if, were the claim to be adversely decided against SYBRON or the
Surviving Corporation, its ongoing business would be materially adversely
affected (whether or not the Escrow Account had fully satisfied the amount of
such claim), or (ii) it reasonably appears to SYBRON, either at the time it or
the Surviving Corporation is made a defendant in or party to a claim or at any
time thereafter, that the Escrow Account will not be sufficient for the full
potential liability under such claim, then SYBRON and the Surviving Corporation
alone shall be entitled to contest and defend such claim (and, while the LRS
Representatives may participate in the contest and defense of such claim at the
LRS Representatives' sole cost and
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expense, SYBRON and the Surviving Corporation shall have full authority to
determine all actions with respect thereto, subject to the necessity of
obtaining the other party's consent with respect to any settlements). Each party
defending a claim shall keep the other party informed of the progress of the
claim including complying with all reasonable requests for copies of documents
related to the claim and the opportunity, from time to time, to consult with
counsel defending the claim. In connection with any such third party claim,
demand, action, or proceeding, the parties shall cooperate with each other and
provide each other with access to relevant books and records in their
possession. No such third party claim, demand, action, or proceeding shall be
settled without the prior written consent of SYBRON and the LRS Representatives,
which consent shall not be unreasonably withheld or delayed in either case. If a
firm written offer is made by the third party to settle or resolve any such
third party claim, demand, action or proceeding and the LRS Representatives
propose to accept such settlement and SYBRON refuses to consent to such
settlement, then: (i) the LRS Representatives shall be excused from, and SYBRON
shall be solely responsible for, all further defense of such third party claim,
demand, action or proceeding; (ii) the maximum reimbursement amount relating to
such third party claim, demand, action or proceeding shall be the amount of the
proposed settlement if the amount thereafter recovered from SYBRON or the
Surviving Corporation on such third party claim, demand, action or proceeding is
greater than the amount of the proposed settlement; and (iii) SYBRON shall pay
all attorneys' fees and legal costs and expenses incurred after rejection of
such settlement, but if the amount thereafter recovered by such third party from
SYBRON or the Surviving Corporation is less than the amount of the proposed
settlement, SYBRON shall also be entitled to reimbursement from the Escrow
Account for such attorneys' fees and legal costs and expenses up to a maximum
amount equal to the difference between the amount recovered by such third party
and the amount of the proposed settlement.
(c) After the Closing, SYBRON and/or the Surviving Corporation's
sole recourse for claims under Section 10.3(a) shall be limited to, and
satisfied solely from, the Escrow Account, thereby limiting SYBRON's and the
Surviving Corporation's recourse for all matters in both time and amount. Any
Damages payable to SYBRON or the Surviving Corporation hereunder shall be paid
by delivery from the Escrow Account of the equivalent value of Sybron Stock (or
proceeds therefrom) using the Average Sybron Stock Price in determining
"equivalent value".
(d) No amount shall be payable to SYBRON or the Surviving
Corporation after the Closing for any Damages unless and until the amount of
such individual Damage is greater than Fifty Thousand Dollars ($50,000) and
until the aggregate of such claims for indemnity under this Section 10.3 exceeds
Five Hundred Thousand Dollars ($500,000), in which case SYBRON and the Surviving
Corporation shall be entitled to recover only such excess amount.
(e) SYBRON and ACQUISITION expressly acknowledge and agree that,
upon the Closing, the indemnification provisions of this Section 10.3 shall be
the sole and exclusive remedy and right of indemnity for any claims of SYBRON or
ACQUISITION (as the Surviving Corporation) arising out of this Agreement.
(f) In determining the amount of any Damages with respect to which
SYBRON or the Surviving Corporation is entitled to indemnification pursuant to
this Section 10.3, such amount shall be determined after deducting therefrom the
amount of any insurance proceeds or other third party recoveries (net of
collection expenses) received by SYBRON, the Surviving Corporation, or the LRS
Companies in respect thereof. SYBRON and ACQUISITION shall use commercially
reasonable efforts to seek recovery under its insurance policies covering any
loss to the same extent as they would if such loss were not subject to
indemnification hereunder. In the event that an insurance recovery is made by
SYBRON, the Surviving Corporation, or the LRS Companies with respect to any loss
for which any such Person has been indemnified hereunder, a refund equal to the
aggregate amount of the recovery (in shares of Sybron Stock valued at the
Average Sybron Stock Price if shares of Sybron Stock were released from the
Escrow Account to pay the Damages or in cash if cash was released from the
Escrow Account to pay the Damages) shall be made promptly to the Escrow Agent
for delivery to the applicable LRS Stockholders from whom indemnification was
obtained.
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10.4 Indemnity by SYBRON.
(a) SYBRON and ACQUISITION shall indemnify and hold the LRS
Stockholders, the LRS Optionholders and the LRS Warrantholder harmless from and
against, and shall defend promptly the LRS Stockholders, the LRS Optionholders
and the LRS Warrantholder from and reimburse them for, any and all Damages which
they may at any time suffer or incur, or become subject to, as a result of or in
connection with any of the following:
(i) any misrepresentation or breach of any representations or
warranties made by ACQUISITION or SYBRON in this Agreement or in the SYBRON
Closing Certificate;
(ii) any failure by ACQUISITION or SYBRON to carry out,
perform, satisfy and discharge in any material respect any of their covenants,
agreements, undertakings, liabilities, or obligations under this Agreement; and
(iii) any suit, action, or other proceeding brought by any
Person arising out of any of the matters referred to in this Section 10.4 of
this Agreement.
(b) The LRS Representatives shall promptly notify ACQUISITION (or
the Surviving Corporation) and SYBRON of any claim, demand, action, or
proceeding for which indemnification will be sought under this Section 10.4 of
this Agreement and, if such claim, demand, action, or proceeding is a third
party claim, demand, action, or proceeding, the Surviving Corporation and SYBRON
will have the right at their expense to assume the defense thereof using counsel
reasonably acceptable to the LRS Representatives. The LRS Representatives shall
have the right to participate, at their own expense, with respect to any such
third party claim, demand, action, or proceeding. In connection with any such
third party claim, demand, action, or proceeding, the parties shall cooperate
with each other and provide each other with access to relevant books and records
in their possession. No such third party claim, demand, action, or proceeding
shall be settled without the prior written consent of the LRS Representatives
and SYBRON, which consent shall not be unreasonably withheld or delayed in
either case. If a firm written offer is made to settle any such third party
claim, demand, action or proceeding and SYBRON proposes to accept such
settlement and the LRS Representatives refuse to consent to such settlement,
then: (i) SYBRON shall be excused from, and the LRS Representatives shall be
solely responsible for, all further defense of such third party claim, demand,
action or proceeding; (ii) the maximum liability of SYBRON relating to such
third party claim, demand, action or proceeding shall be the amount of the
proposed settlement if the amount thereafter recovered from the LRS
Stockholders, the LRS Optionholders and the LRS Warrantholder on such third
party claim, demand, action or proceeding is greater than the amount of the
proposed settlement; and (iii) the LRS Representatives shall pay all attorneys'
fees and legal costs and expenses incurred after rejection of such settlement by
the LRS Representatives, but if the amount thereafter recovered by such third
party from the LRS Stockholders, the LRS Optionholders and the LRS Warrantholder
is less than the amount of the proposed settlement, the LRS Representatives
shall also be reimbursed by SYBRON for such attorneys' fees and legal costs and
expenses up to maximum amount equal to the difference between the amount
recovered by such third party and the amount of the proposed settlement.
(c) Any Damages payable to the LRS Stockholders, the LRS
Optionholders or the LRS Warrantholder hereunder shall be paid by delivery of
that number of shares of Sybron Stock as is equal to the amount of Damages
divided by the Average Sybron Stock Price.
(d) It is expressly acknowledged and agreed that, upon the
Closing, the indemnification provisions of this Section 10.4 shall be the sole
and exclusive remedy and right of indemnity for any claims by any LRS
Stockholder, LRS Optionholder or the LRS Warrantholder against SYBRON or
ACQUISITION (as the Surviving Corporation) arising out of this Agreement.
(e) In determining the amount of any Damages with respect to which
any LRS Stockholder, any LRS Optionholder or the LRS Warrantholder is entitled
to indemnification pursuant to this Section 10.4, such amount shall be
determined after deducting therefrom the amount of any insurance proceeds or
other third party recoveries received by such LRS Stockholder, LRS Optionholder
or LRS Warrantholder in respect thereof and the amount of any net tax benefit
related thereto.
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10.5 Exclusivity and Survival of Representations and Warranties. The
representations and warranties contained in Articles IV and V of this Agreement
are the parties' sole and exclusive representations and warranties concerning
the subject matter hereof, and each party acknowledges and agrees that all other
representations and warranties of any kind or nature expressed or implied
(including, but not limited to, any relating to the future or historical
financial condition, results of operations, assets or liabilities of the
parties) are specifically disclaimed. All representations and warranties of the
parties contained in this Agreement shall survive the Closing Date and the
consummation of the transactions contemplated by this Agreement, but shall
expire on the earlier to occur of the date of completion of the first annual
audit of SYBRON's financial statements following the Closing or the one-year
anniversary date of the Closing Date.
10.6 Entire Agreement; Amendment. Except for the Confidentiality
Agreement (as modified by Section 3.12 hereof), this Agreement and the documents
referred to in this Agreement and required to be delivered pursuant to this
Agreement constitute the entire agreement among the parties pertaining to the
subject matter of this Agreement, and supersede all prior and contemporaneous
agreements, understandings, negotiations and discussions of the parties, whether
oral or written, and there are no warranties, representations or other
agreements between the parties in connection with the subject matter of this
Agreement, except as specifically set forth in this Agreement. This Agreement
may be amended by the parties at any time before or after approval of this
Agreement by the LRS Stockholders, except that after such approval, no amendment
shall be made without the further approval of the LRS Stockholders if any such
amendment: (a) changes the Gross Merger Price; or (b) materially adversely
affects the rights of the LRS Stockholders. No amendment, supplement,
modification, waiver or termination of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision of this Agreement, whether or not similar, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
10.7 Governing Law. This Agreement shall be construed and interpreted
according to the Laws of the State of Delaware.
10.8 Assignment. This Agreement shall not be assigned:
(a) by LRS except with the prior written consent of SYBRON; and
(b) by SYBRON or ACQUISITION, except: (i) with the prior written
consent of LRS; (ii) to a Subsidiary of SYBRON provided SYBRON agrees in
connection with such assignment to remain primarily liable hereunder; or (iii)
in connection with a sale or transfer of all or substantially all of the assets
of SYBRON or a reorganization, merger, tender offer, consolidation or similar
transaction affecting all or substantially all of the outstanding equity
interests of SYBRON.
10.9 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 SYBRON or SYBRON INTERNATIONAL CORPORATION
ACQUISITION: Attention: R. Jeffrey Harris, Esq.
411 East Wisconsin Avenue
Milwaukee, WI 53202
Fax No: 414-390-5476
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with a copy to:
Quarles & Brady
Attention: Michael K. Bresson, Esq.
411 East Wisconsin Avenue
Milwaukee, WI 53202
Fax No: 414-271-3552
If to LRS: LRS ACQUISITION CORP.
c/o Liberty Partners
Attention: Michael J. Kluger
1177 Avenue of the Americas
New York, NY 10036
Fax No: 212-354-0336
with a copy to:
Kirkland & Ellis
Attention: Edward T. Swan, Esq.
200 East Randolph Drive
Chicago, IL 60601
Fax No: 312-861-2200
10.10 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 Table of Contents
and Article and Section headings in this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
10.11 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 in any gender shall extend to and include all genders. The
language used in this Agreement shall be deemed to be language chosen by the
parties to this Agreement to express their mutual intent. In the event an
ambiguity or question of intent or interpretation arises concerning the language
of this Agreement, this Agreement shall be construed as if drafted jointly by
the parties to this Agreement and no presumption or burden of proof will arise
favoring or disfavoring any party to this Agreement by virtue of the authorship
of any of the provisions of this Agreement.
10.12 Severability. If any provision, clause, or part of this
Agreement, or the application thereof under certain circumstances, is held
invalid, the remainder of this Agreement, or the application of such provision,
clause or part under other circumstances, shall not be affected thereby unless
such invalidity materially impairs the ability of the parties to consummate the
transactions contemplated by this Agreement.
10.13 Specific Performance. The parties agree that the assets and
business of the LRS Companies as a going concern constitute unique property.
There is no adequate remedy at Law for the Damage which SYBRON might sustain for
failure of LRS to consummate the Merger and the transactions contemplated by
this Agreement and, accordingly, SYBRON shall be entitled, at its option but
only if all of the conditions set forth in Article IX have been satisfied or
duly waived and SYBRON is not otherwise in material breach of this Agreement, to
the remedy of specific performance to enforce the Merger pursuant to this
Agreement.
10.14 No Reliance. Except for the parties to this Agreement and any
assignees permitted by Section 10.8 of this Agreement: (a) no Person is entitled
to rely on any of the representations, warranties and agreements of the parties
contained in this Agreement; and (b) the parties assume no liability to any
Person because of any reliance on the representations, warranties and agreements
of the parties contained in this Agreement.
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10.15 Further Assurances. If, at any time after the Effective Time of
Merger, any further action is necessary or desirable to carry out the purposes
of this Agreement and to vest the Surviving Corporation with full right, title
and possession to all assets, properties, rights, privileges, and powers of
either ACQUISITION or LRS, the officers of the Surviving Corporation are fully
authorized to take any such action in the name of ACQUISITION or LRS.
10.16 LRS Representatives.
(a) Upon the approval by the LRS Stockholders of this Agreement,
the Merger, and the transactions contemplated by this Agreement, each LRS
Stockholder (other than holders of Dissenting Shares), LRS Optionholder and the
LRS Warrantholder shall be deemed to have irrevocably constituted and appointed
Messrs. Michael Kluger, Gordie Nye, and Kenneth Rainin as their agents and
attorneys in fact with full power of substitution to do any and all things and
execute any and all documents which may be necessary, convenient or appropriate
to facilitate the consummation of the transactions contemplated by this
Agreement, including but not limited to: (i) amendments to this Agreement; (ii)
waivers of the satisfaction of any of the conditions set forth in Article IX of
this Agreement; (iii) execution of documents and certificates pursuant to this
Agreement; (iv) receipt and forwarding of notices and communications pursuant to
this Agreement; and (v) negotiation and settlement of any disputes, including
indemnification matters and adjustments to the Gross Merger Price as
contemplated herein.
(b) In the event that the LRS Representatives, upon the advice of
counsel or otherwise, are of the opinion that they require further authorization
or advice from the LRS Stockholders, the LRS Optionholders or the LRS
Warrantholder on any matters concerning this Agreement, the LRS Representatives
shall be entitled to seek such further authorization prior to acting on their
behalf.
(c) SYBRON and ACQUISITION shall be fully protected in dealing
with the LRS Representatives under this Agreement and may rely upon the
authority of the LRS Representatives to act as the LRS Stockholders', the LRS
Optionholders' and the LRS Warrantholder's agent under this Agreement. Any
payments or delivery of payments by SYBRON or ACQUISITION to the LRS
Representatives under this Agreement for the benefit of the LRS Stockholders,
the LRS Optionholders or the LRS Warrantholder shall be considered payments by
SYBRON and ACQUISITION to the LRS Stockholders, the LRS Optionholders and the
LRS Warrantholder. The appointments of the LRS Representatives are coupled with
an interest and shall be irrevocable by any LRS Stockholder, LRS Optionholder or
the LRS Warrantholder in any manner or for any reason. This power of attorney
shall not be affected by the death, disability, or incapacity of any LRS
Stockholder, LRS Optionholder or the LRS Warrantholder.
(d) If at any time there is no Person acting as an LRS
Representative for any reason, a majority in interest of the LRS Stockholders
shall choose a Person to act as the LRS Representative under this Agreement.
10.17 Directors' and Officers' Liability Coverage. For a period of at
least three (3) years after the Effective Time of Merger, SYBRON will, and will
cause the Surviving Corporation to, maintain in effect (which in each case shall
cover the same matters and be on terms no less favorable than such articles or
certificates of incorporation or bylaws of LRS as set forth on the Disclosure
Schedule and as are in effect on the date of this Agreement) bylaw provisions
and articles or certificate of incorporation provisions indemnifying present or
former directors and officers of LRS who serve or served as such at or prior to
the Effective Time of Merger.
10.18 Tax Matters.
(a) Any indemnification payment pursuant to either Section 10.3
or 10.4 of this Agreement shall be treated as an adjustment to the Gross Merger
Price.
(b) SYBRON shall prepare or cause to be prepared and file or
cause to be filed all tax returns for the LRS Companies for all periods (or
portions thereof) ending on or prior to the Closing Date which are filed on or
before the termination of the representations and warranties as described in
Section 10.5 hereof. SYBRON (i) agrees to prepare such tax returns in a manner
consistent with the past tax reporting practices of the LRS Companies; (ii)
agrees to allow the LRS Representatives to review and comment on such tax
returns; and (iii) agrees that such tax returns shall not be filed without
receiving the prior written consent of the LRS Representatives, which consent
will not be unreasonably withheld or delayed.
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10.19 Severance Matters. After the Merger, SYBRON will cause the
Surviving Corporation to adopt and abide by the current severance policy of
Sybron Dental Specialties, a subsidiary of SYBRON, with respect to the LRS
employees. For purposes of severance, said LRS employees shall receive credit
for their years of service with the LRS Companies and their predecessors. In
addition to said standard severance policy, SYBRON shall cause the Surviving
Corporation to enhance the severance policy for senior management of LRS, as
determined by SYBRON after consultation prior to the Closing with the LRS
Representatives. The parties agree that $300,000 shall be booked as an accrual
on the Closing Balance Sheet specifically for said enhanced severance.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement and Plan of
Reorganization to be duly executed as of the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By: /s/ Kenneth F. Yontz
---------------------------------------------
LRS ACQUISITION CORP.
By: /s/ Gordon Nye
---------------------------------------------
NORMANDY ACQUISITION CO.
By: /s/ Dennis Brown
---------------------------------------------
LIBERTY PARTNERS HOLDINGS 5, L.L.C.
By: /s/ Michael Kluger
---------------------------------------------
Acceptance of the appointments made in Section 10.16 is hereby acknowledged by:
/s/ Michael Kluger
--------------------------------------------
Michael Kluger
/s/ Gordie Nye
--------------------------------------------
Gordie Nye
/s/ Kenneth Rainin
--------------------------------------------
Kenneth Rainin
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CERTIFICATIONS
Pursuant to the requirements of Section 251(c) of the Delaware General
Corporation Law, the undersigned duly elected, qualified and acting Secretary of
Normandy Acquisition Co., a Delaware corporation, hereby certifies that at least
a majority of the outstanding stock of such corporation entitled to vote on this
Agreement has been voted in favor of adoption of this Agreement.
Dated: , 1998.
---------------------
NORMANDY ACQUISITION CO.
By:
-----------------------------
Name:
---------------------------
Its: Secretary
Pursuant to the requirements of Section 251(c) of the Delaware General
Corporation Law, the undersigned duly elected, qualified and acting Secretary of
LRS Acquisition Corp., a Delaware corporation, hereby certifies that at least a
majority of the outstanding stock of such corporation entitled to vote on this
Agreement has been voted in favor of adoption of this Agreement.
Dated: , 1998.
---------------------
LRS ACQUISITION CORP.
By:
----------------------------
Name:
--------------------------
Its: Secretary
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EXHIBIT 1
FORM OF AFFILIATE LETTER
[CLOSING DATE], 1998
-----------------------
Name of Affiliate
Sybron International Corporation
411 East Wisconsin Avenue
24th Floor
Milwaukee, WI 53202
Ladies and Gentlemen:
I have been advised that as of the date of the meeting of
stockholders of LRS Acquisition Corp. ("LRS") to vote on the transaction
described below, and as of the date hereof, I may be deemed an "affiliate" (as
that term is defined for purposes of Rule 145(c) and (d) under the Securities
Act of 1933, as amended (the "Act")) of LRS. Pursuant to the terms of the
Agreement and Plan of Reorganization dated as of January __, 1998 (the
"Agreement") by and among Sybron International Corporation ("SYBRON"), Normandy
Acquisition Co. ("ACQUISITION"), LRS and Liberty Partners Holdings 5, L.L.C.,
ACQUISITION will be merged with and into LRS in a transaction (the "Merger") in
which I will receive shares of $0.01 par value common stock of SYBRON (the
"Shares") in exchange for shares of LRS capital stock and rights to acquire
shares of LRS capital stock which I own at the "Effective Time of Merger" (as
that term is defined in the Agreement).
In connection with the Merger, I represent and warrant to, and
agree with, SYBRON that:
1. I have carefully read this Affiliate Letter and discussed
its requirements and other applicable limitations upon the sale, transfer or
other disposition of the Shares, to the extent I felt necessary, with my counsel
or counsel for LRS.
2. I have carefully read the Agreement relating to the Merger
and discussed its requirements and its impact upon my ability to sell, transfer
or otherwise dispose of the Shares, to the extent I felt necessary, with my
counsel or counsel for LRS.
3. I have been informed by SYBRON that the distribution to me
of the Shares in the Merger has been registered under the Act; however, the
distribution by me of the Shares has not been registered under the Act and the
Shares must be held by me indefinitely unless (i) such distribution by me of the
Shares has been registered under the Act, (ii) a sale by me of the Shares is
made in conformity with the volume and other limitations of Rule 145 promulgated
by the Securities and Exchange Commission (the "Commission") under the Act (and
otherwise in accordance with Rule 144 under the Act if I am an affiliate of
SYBRON and if so required at the time), or (iii) some other exemption from
registration is available with respect to any such proposed sale, transfer or
other disposition by me of the Shares in the opinion of counsel satisfactory to
SYBRON. I agree that I will not make any sale, transfer or other disposition of
the Shares in violation of the Act or the rules and regulations of the
Commission thereunder.
4. I understand that SYBRON is under no obligation to
register, under the Act, the sale, transfer or other disposition of the Shares
by me or on my behalf or to take any other action necessary in order to make
compliance with an exemption from registration available, except for SYBRON's
customary procedures in connection with sales of its stock in conformity with
Rule 145 and except for SYBRON's obligation to register the Shares in accordance
with the terms and conditions of the Registration Rights Agreement of even date
herewith executed and delivered by SYBRON, myself and certain others pursuant to
the Agreement. By accepting this Affiliate Letter, SYBRON agrees to exert its
best efforts to timely file with the Commission all of the reports it is
required to file under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
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5. I also understand SYBRON may decline to recognize any
transfer of the Shares inconsistent with this Affiliate Letter, that stop
transfer instructions will be given to SYBRON's transfer agent with respect to
the Shares and that there will be placed on the certificates for the Shares, or
any substitutions therefor, a legend stating in substance:
"The shares represented by this certificate were issued in a
transaction to which Rule 145 promulgated under the Securities Act of
1933, as amended (the "Act"), applies and may be sold or otherwise
transferred only in compliance with the limitations of such Rule 145,
or upon receipt by Sybron International Corporation of an opinion of
counsel acceptable to it that some other exemption from registration
under the Act is available, or pursuant to an effective registration
statement under the Act. The shares represented by this certificate may
not be sold or otherwise transferred prior to the publication by Sybron
International Corporation of posttransaction combined financial results
covering at least 30 days of operations subsequent to [insert date of
Effective Time of Merger under the Agreement]."
By accepting this Affiliate Letter, SYBRON agrees that upon my request and
delivery to the transfer agent of such legended certificates and after passage
of the period referred to in the second sentence of such legend, it will
instruct the transfer agent to deliver to me substitute certificates of SYBRON
common stock with a legend consisting solely of the first sentence of the legend
set forth above.
6. I have not, within the 30 days prior to the date hereof,
sold, transferred, or otherwise disposed of, or reduced my risk relative to, any
shares of LRS or SYBRON capital stock beneficially owned by me and,
notwithstanding the other provisions hereof, I will not, nor am I currently a
party to or bound by any agreement requiring me to, sell, transfer, or otherwise
dispose of, or reduce my risk relative to, any Shares received by me in the
Merger or any other shares of SYBRON capital stock which I may beneficially own
prior to such time as financial results covering at least 30 days of post-Merger
combined operations of SYBRON and LRS have been published by SYBRON, in the form
of a quarterly earnings report, an effective registration statement filed with
the Commission, a report to the Commission on Form 10-K, 10-Q or 8-K, or, at
SYBRON's option, some other public filing or announcement which includes the
combined financial results of operations. I understand that, until such time,
SYBRON may refuse to recognize such transfer and that stop transfer instructions
will be given to SYBRON's transfer agent with respect to the Shares or such
other shares of SYBRON capital stock.
It is understood and agreed that this Affiliate Letter shall
terminate and be of no further force and effect and the legend set forth in
paragraph 5 above shall be removed by delivery of substitute certificates
without such legend, and the related stock transfer restrictions shall be lifted
forthwith, if the period of time specified in paragraph 6 above has passed and:
(a) my Shares shall have been registered under the Act for
sale, transfer or other disposition by me or on my behalf; or
(b) I am not at the time (and, if clause (ii) below applies, I
have not been for at least the preceding three months) an affiliate of SYBRON
and have beneficially owned the Shares for at least (i) one (1) year (or such
other period as may be prescribed by the Act and the rules promulgated
thereunder) and SYBRON has filed with the Commission all of the reports it is
required to file under the Exchange Act during the preceding twelve (12) months,
or (ii) two (2) years (or such other period as may be prescribed by the Act and
the rules thereunder) if the aforementioned condition as to filing reports with
the Commission has not been met; or
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(c) SYBRON shall have received a letter from the staff of the
Commission, or an opinion of Quarles & Brady or other counsel acceptable to
SYBRON, to the effect that the stock transfer restrictions and the legend are
not required.
Very truly yours,
--------------------
[NAME]
Accepted as of the date of
this Affiliate Letter.
SYBRON INTERNATIONAL CORPORATION
By:
-----------------------------
Name:
------------------------
Title:
-----------------------
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EXHIBIT 2
FORM OF CERTIFICATE OF MERGER
OF
NORMANDY ACQUISITION CO.,
a Delaware Corporation,
INTO
LRS ACQUISITION CORP.,
a Delaware corporation
The undersigned corporation, pursuant to Section 251 of the Delaware
General Corporation Law, for the purpose of merging Normandy Acquisition Co.
("ACQUISITION"), a Delaware corporation, into LRS Acquisition Corp. ("LRS"), a
Delaware corporation, which is the surviving corporation in such merger (the
"Surviving Corporation") (ACQUISITION and LRS are together referred to herein as
the "Constituent Corporations") hereby certifies the following:
1. An Agreement and Plan of Reorganization (the "Merger Agreement") by
and among Sybron International Corporation, ACQUISITION, LRS and Liberty
Partners Holdings 5, L.L.C. has been approved, adopted, certified, executed and
acknowledged by each of the Constituent Corporations in accordance with Section
251 of the Delaware General Corporation Law.
2, The name of the surviving corporation is LRS Acquisition Corp., and
it shall be governed by the laws of the State of Delaware. The Amended and
Restated Certificate of Incorporation of LRS, as in effect immediately prior to
the effective date of the merger, shall be the Amended and Restated Certificate
of Incorporation of the surviving corporation, until amended in accordance with
law.
3. The executed Merger Agreement is on file at the principal place of
business of the Surviving Corporation, 9900 Old Grove Road, San Diego,
California 92131-1683.
4. A copy of the Merger Agreement will be furnished by the Surviving
Corporation, on request and without cost, to any stockholder of either of the
Constituent Corporations.
5. The effective date of the merger shall be the date on which this
Certificate of Merger is filed with the Office of the Delaware Secretary of
State.
IN WITNESS WHEREOF, the Surviving Corporation has caused this
Certificate of Merger to be executed as of the ____ day of ________, 1998.
LRS ACQUISITION CORP.
By:
------------------------------
Its:
-----------------------------
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EXHIBIT 3
FORM OF ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") is entered into this ___ day
of _________, 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 __, 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 ________
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 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
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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.
(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 $__________ (the Average
Sybron Stock Price) and such reservation may be accomplished without
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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 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.
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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.
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
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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
----------------------------
----------------------------
Fax No.
---------------------
Gordon Nye
----------------------------
----------------------------
Fax No.
---------------------
Kenneth Rainin
----------------------------
----------------------------
Fax No.
---------------------
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
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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 Sybron International Corporation
Surviving 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.
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.
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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).
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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:
------------------------------
Name:
----------------------------
Title:
---------------------------
-------------------------------------------
Michael Kluger, as an LRS Representative
-------------------------------------------
Gordon Nye, as a Holdback Participant and an
LRS Representative
-------------------------------------------
Kenneth Rainin, as a Holdback Participant
and an LRS Representative
STATE STREET BANK AND TRUST COMPANY
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
LIBERTY PARTNERS HOLDINGS 5, L.L.C.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
-------------------------------------------
Robert B. Stockman, as a Holdback
Participant
-------------------------------------------
Robert F. Johnston, as a Holdback
Participant
-------------------------------------------
William W. Crouse, as a Holdback Participant
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SCHEDULE I
ESCROW DEPOSIT
NAME OF HOLDBACK NUMBER OF MERGER PERCENTAGE OF
PARTICIPANT SHARES DEPOSITED TOTAL DEPOSIT
Liberty Partners
Holdings 5, L.L.C.
Kenneth Rainin
Robert B. Stockman
Robert F. Johnston
William W. Crouse
Gordon Nye
[PLUS SUCH OTHER HOLDBACK PARTICIPANTS UPON WHICH SYBRON AND LRS MUTUALLY AGREE]
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SCHEDULE II
GUIDELINES FOR DISBURSEMENTS FROM THE ESCROW DEPOSIT
TO THE HOLDBACK PARTICIPANTS
[TO BE ATTACHED; INCLUDED SHALL BE THE MAILING ADDRESSES AND WIRE TRANSFER
INSTRUCTIONS FOR THE HOLDBACK PARTICIPANTS. IN ADDITION, THE PROCEDURE FOR
SPLITTING SHARE CERTIFICATES IN THE EVENT OF A PARTIAL FORFEITURE OR
DISBURSEMENT SHALL BE OUTLINED.]
173
SCHEDULE III
SCHEDULE OF ESCROW FEES
Acceptance Fee: Waived
Administrative Fee: $3,000.00 per year or part
thereof, plus
$1,000.00 for each sale of all, or
$500.00 for each sale of a part,
of a Holdback Participant's
Escrow Shares
Sweep Fee:
(SSgA US Treasury 40 Basis Points per annum of the
Money Market Funds) average daily net assets
Wire Transfer Fee (outgoing): $20.00 (domestic)
$35.00 (international)
Out-of-Pocket Expenses (excluding legal
fees): At Cost
Legal Fees (Peabody & Arnold): At Cost, up to a maximum of
$1,000.00 in the aggregate
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EXHIBIT 4
FORM OF EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Exchange Agreement") is entered into this
_____ day of __________, 1998, by and among SYBRON INTERNATIONAL CORPORATION, a
Wisconsin corporation ("SYBRON"), BANKBOSTON, N.A., a national banking
association having its principal offices in Boston, Massachusetts, and MICHAEL
KLUGER, GORDIE NYE and KENNETH RAININ (collectively, the "LRS Representatives").
WHEREAS, SYBRON, Normandy Acquisition Co., LRS Acquisition Corp.
("LRS") and Liberty Partners Holdings 5, L.L.C. ("Liberty") intend to consummate
the transactions (the "Merger Transactions") described in their Agreement and
Plan of Reorganization dated as of January ___, 1998 (the "Agreement"), pursuant
to which, among other things, each share of the issued and outstanding capital
stock of LRS ("LRS Common Stock" and "LRS Preferred Stock", as the case may be),
an outstanding warrant held by Liberty to purchase LRS Common Stock (the "LRS
Warrant") and certain outstanding options for LRS Common Stock (each, an "LRS
Option") (collectively, the LRS Common Stock, LRS Preferred Stock, LRS Warrant
and LRS Options shall be referred to herein as the "LRS Securities") will be
converted into or exchanged for common stock, par value $0.01 per share, of
SYBRON ("Common Stock") which will be registered under the Securities Act of
1933; and
WHEREAS, BankBoston, N.A. is presently the transfer agent and registrar
for the Common Stock; and
WHEREAS, SYBRON and the LRS Representatives desire that BankBoston,
N.A. act as exchange agent in connection with the Merger Transactions, and
BankBoston, N.A. (hereinafter referred to from time to time as the "Exchange
Agent," the "Transfer Agent" or the "Registrar") has indicated its willingness
to do so.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Agreement, the parties hereto agree as follows:
1. Appointment of Exchange Agent; Establishment of Exchange Fund. (a)
SYBRON and the LRS Representatives hereby appoint BankBoston, N.A. as their
agent for the purpose of exchanging certificates formerly representing shares of
LRS Common Stock and LRS Preferred Stock for certificates representing shares of
Common Stock upon all of the terms and conditions described in the Agreement.
SYBRON and the LRS Representatives also hereby appoint BankBoston, N.A. as their
agent to facilitate the exchange of the LRS Options and LRS Warrant for shares
of Common Stock upon all of the terms and conditions described in the Agreement.
For purposes hereof, the certificates representing the LRS Common Stock, the LRS
Preferred Stock and the LRS Warrant and the agreements representing the LRS
Options will be collectively referred to as the "LRS Certificates." BankBoston,
N.A. hereby agrees to serve in such capacities, upon the terms and conditions
set forth in Section 2.8 of the Agreement and herein. In connection with such
appointment, SYBRON has delivered to the Exchange Agent a copy of the Agreement
(attached hereto as Exhibit A), a copy of the letter of transmittal (the "Letter
of Transmittal") to be used by holders of LRS Certificates in order to effect
the exchange of their LRS Certificates for Common Stock (attached hereto as
Exhibit B) and the form of Instructions (the "Instructions") to be sent to
holders of LRS Certificates describing the procedures to be followed in order to
effect such exchange (attached hereto as Exhibit C).
(b) SYBRON shall make all arrangements to deposit with the Exchange
Agent, upon the Effective Time of Merger (as defined in the Agreement), the
following (the "Exchange Fund"): (i) certificates representing the Common Stock
to be issued in connection with the Merger Transactions; and (ii) cash in the
amount required in order to enable the Exchange Agent to make cash payments in
lieu of fractional shares as described in the Agreement and Section 2(k) below.
2. Notification and Processing. The Exchange Agent is hereby authorized
and directed, and hereby agrees to:
(a) Take such actions as may be necessary to permit each holder of
an LRS Certificate who has provided all required documentation to receive, at
the closing of the Merger Transactions (the "Closing"), the shares of Common
Stock (and cash in lieu of any fractional share interest) to which such holder
is entitled as a result of the Merger Transactions.
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(b) Mail, first class mail, postage prepaid, as soon as practicable
following the execution of this Exchange Agreement, to each holder of record of
an LRS Certificate the following materials: (a) a copy of the Letter of
Transmittal (including the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9); (b) a copy of the Instructions;
and (c) an envelope addressed to the Exchange Agent for use by such holder in
order to effect the exchange of his or her LRS Certificates for certificates
representing Common Stock.
(c) Accept and respond to all telephone requests for information
relating to the exchange of LRS Certificates in connection with the Merger.
(d) Receive and examine all LRS Certificates submitted for exchange
and accompanying Letters of Transmittal to determine whether such documents and
instruments have been properly executed in accordance with the terms thereof.
Such examination shall include determination of whether such LRS Certificates
formerly representing LRS Common Stock or LRS Preferred Stock are in proper form
for transfer on the share registry books of LRS and verification that no stop
order has been issued against any shares represented by the surrendered LRS
Certificates by reason of loss, theft, destruction or other invalidity. The LRS
Representatives hereby agree to cause such share registry books to be made
available to the Exchange Agent for purposes of the Exchange Agent's duties
pursuant to this Section 2(d). In making these determinations, the following
shall apply:
(i) If more than one person is the record holder of any such LRS
Certificate, the Letter of Transmittal must be signed by each record holder.
(ii) In the event there has occurred a transfer of ownership of
shares of LRS Common Stock or LRS Preferred Stock which has not been registered
in the transfer records of LRS, a certificate representing the proper number of
shares of Common Stock may be issued to the transferee of such LRS Common Stock
or LRS Preferred Stock if the relevant LRS Certificate is presented to the
Exchange Agent, accompanied by all documents required to evidence and effect
such transfer, and by evidence that any applicable stock transfer taxes have
been paid.
(iii) In the event an LRS Certificate has been lost, stolen,
destroyed or mutilated, a certificate representing the proper number of shares
of Common Stock may be issued to the holder thereof upon presentation to the
Exchange Agent of reasonably satisfactory evidence of ownership and the loss,
theft, destruction or mutilation of the LRS Certificate (including without
limitation an affidavit of loss) and, in the case of any loss, theft or
destruction, an indemnity reasonably satisfactory to SYBRON and the Exchange
Agent, and, in the case of a mutilation, all remaining portions of such LRS
Certificate.
(iv) If the Letter of Transmittal is signed by a person acting
in a fiduciary or representative capacity, such capacity must be shown on the
Letter of Transmittal and proper evidence of authority so to act must have
accompanied the Letter of Transmittal.
(e) Retain provisionally those exchange documents evidencing some
deficiency in execution and make reasonable attempts to inform the former
holders of the LRS Certificates of such deficiencies.
(f) Issue, as Transfer Agent and Registrar for the Common Stock,
shares of Common Stock as detailed on Schedule I hereto, to be registered in
such names as are indicated in properly executed Letters of Transmittal;
provided that no fractional shares of Common Stock shall be issued. Arrange for
the issuance of a single certificate representing all shares of Common Stock to
which each shareholder is entitled, unless otherwise required by Section 2(l).
(g) As Transfer Agent and Registrar, record and countersign Common
Stock certificates in such names and in such amounts as the Exchange Agent may
request in writing and deliver such certificates to or upon the written order of
the Exchange Agent.
(h) Cancel, as Exchange Agent, all LRS Certificates accepted for
exchange and retain such LRS Certificates pending further instructions from
SYBRON.
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(i) Promptly deliver (following the Effective Time of Merger and at
the Closing to the extent practicable), upon surrender of the LRS Certificates
and properly executed Letters of Transmittal, in accordance with the
instructions in the relevant Letter of Transmittal, the certificates
representing Common Stock that are issued as provided in Section 2(f).
(j) If not delivered at the Closing, deliver the certificates
representing Common Stock by first class mail under the provisions of the
Exchange Agent's first class mail bond protecting SYBRON and the Exchange Agent
from loss or liability arising out of the non-receipt or non-delivery of such
certificates representing Common Stock or arising out of the replacement
thereof, for any deliveries where market value does not exceed the amount of the
Exchange Agent's first class mail bond. Any mail delivery exceeding such amount
shall be delivered by registered mail and shall be insured separately for the
replacement value of its contents at the time of mailing.
(k) Pay cash, without earnings or interest and subject to applicable
tax withholding, to holders of LRS Certificates in lieu of the issuance of
fractional shares upon exchange thereof, as provided in the Agreement and
detailed on Schedule I hereto; provided, however, that no such payment
obligation shall arise until after SYBRON has satisfied its obligation to
deliver such cash to the Exchange Agent as described in Section 1(b). The
Agreement provides that no fractional shares of Common Stock will be issued;
rather, all fractional share interests of a holder of one or more LRS
Certificates at the Effective Time of Merger shall be aggregated and in lieu of
any resulting fractional share such holder shall be paid cash in an amount equal
to such fraction multiplied by the Average Sybron Stock Price (as defined in the
Agreement).
(l) When an LRS Certificate registered in the name of a holder who
has agreed to contribute to the "Escrow Account" to be established as described
in the Agreement (a "Holdback Participant"), as identified on Schedule I hereto,
is surrendered, arrange for delivery to the Escrow Agent pursuant to the Escrow
Agreement (as defined in the Agreement) of a certificate registered in the name
of such Holdback Participant representing the number of shares of Common Stock
to be contributed to the Escrow Account by such Holdback Participant (as set
forth in Schedule I hereto).
(m) Prepare and file all appropriate tax information forms,
including but not limited to Forms 1099B, covering dividend payments or any
other distributions made by the Exchange Agent to any shareholder of SYBRON
during each calendar year, or any portion thereof, during which the Exchange
Agent performs services hereunder.
(n) Following the Closing, establish and maintain an account for the
benefit of holders of LRS Certificates whose LRS Certificates are not exchanged
for Common Stock at the Closing. As such LRS Certificates are appropriately
surrendered from time to time, the Exchange Agent shall exchange them for
certificates representing shares of Common Stock, plus cash in lieu of any
fractional share interest as described in the Agreement and this Exchange
Agreement. No holder of an LRS Certificate shall be entitled to any interest on
any funds awaiting exchange.
(o) Maintain on a continuing basis a list of holders of LRS
Certificates who have not yet exchanged their LRS Certificates for Common Stock
and furnish such list to the LRS Representatives upon request.
(p) At the request of SYBRON, provide to SYBRON, at any time, any
and all records, information and materials concerning and representing
unexchanged LRS Certificates (including the list maintained as described in
Section 2(o)) and return to SYBRON, as soon as practicable after the one (1)
year anniversary of the Effective Time of Merger, any remaining Exchange Fund.
3. Indemnification. The Exchange Agent shall be indemnified and held
harmless by SYBRON from and against any and all reasonable expenses, including
reasonable counsel fees and disbursements, or losses suffered by the Exchange
Agent in connection with any action, suit or other proceeding or investigation
involving any claim or liability, that, directly or indirectly, results from or
arises out of the Exchange Agent's actions hereunder; provided, however, that
the Exchange Agent shall not be indemnified and held harmless with respect to
such expenses or losses that result from or arise out of the Exchange Agent's
gross negligence, willful misconduct or bad faith or its breach or violation of
this Exchange Agreement or applicable law. Promptly after the receipt by the
Exchange Agent of notice of any demand or claim or the commencement of any
action, suit, proceeding or investigation, the Exchange Agent shall, if a claim
in respect thereof is to be made against SYBRON, notify SYBRON thereof in
writing. SYBRON shall be entitled to participate in the defense of such claim,
legal action or proceeding and, if so elected by SYBRON at any time after
receipt of such notice, SYBRON may assume the defense of any suit brought to
enforce any such claim or of any other such legal action or proceeding. For the
purposes hereof, the term "expense or loss" shall mean any amount
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paid or payable to satisfy a claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the Exchange Agent (which consent shall not be unreasonably
withheld), and all reasonable costs and expenses, including without limitation
reasonable counsel fees and disbursements, paid or incurred in investigating or
defending against any such claim, demand, action, suit, proceeding or
investigation.
4. Compensation of Agent. The Exchange Agent shall be entitled to a fee
of $7,500, which shall be paid by SYBRON upon presentation of an invoice
therefor, for all services rendered by the Exchange Agent hereunder. The
Exchange Agent shall also be entitled to reimbursement from SYBRON for all
reasonable expenses paid or incurred by it in the administration of its duties
hereunder, including without limitation all reasonable services rendered in
performance of this Exchange Agreement.
5. Further Assurances; Reliance. (a) From time to time on and after the
date hereof, SYBRON and the LRS Representatives shall deliver or cause to be
delivered to the Exchange Agent such further documents and instruments as it
shall reasonably request (it being understood that the Exchange Agent shall have
no obligation to make any such request) to carry out more effectively the
provisions and purposes of this Exchange Agreement, to evidence compliance
herewith or to assure itself that it is protected in acting hereunder.
(b) In performance of its duties hereunder, the Exchange Agent shall
be justified in acting in reliance upon information received or contained in any
instrument, certificate, opinion, notice, letter, telephone call, fax, telegram
or other document delivered to such Exchange Agent and reasonably believed by it
to be genuine; the Exchange Agent shall be authorized to receive instructions
hereunder solely from: (i) on behalf of SYBRON, R. Jeffrey Harris, Vice
President - General Counsel and Secretary, or Dennis Brown, Vice President -
Finance, Chief Financial Officer and Treasurer; and (ii) on behalf of the LRS
Representatives, Michael Kluger, Gordie Nye and Kenneth Rainin.
6. 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 or by commercial courier or by a telephonic
facsimile transmission and followed by hard copy sent by United States mail, or
upon receipt if 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 SYBRON, to: Sybron International 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):
Quarles & Brady
Attn: Kathryn M. Coates, Esq.
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Fax No. 414-277-5174
If to the LRS
Representatives, to: Michael Kluger
----------------------------------
----------------------------------
Fax No.
---------------------------
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Gordie Nye
----------------------------------
----------------------------------
Fax No.
---------------------------
Kenneth Rainin
----------------------------------
----------------------------------
Fax No.
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 Exchange
Agent, to: BankBoston, N.A.
Shareholder Services Division
Mail Stop
150 Royall Street
Canton, Massachusetts 02021
Attn:
Fax No. 617-575-2233
7. Term. The term of this Exchange Agreement shall commence on the date
hereof and continue until such time as the Exchange Fund has been completely
distributed or returned to SYBRON as described in Section 2(p); provided,
however, that in the event the term of this Exchange Agreement extends beyond
the one (1) year anniversary of the Effective Time of Merger, SYBRON and the
Exchange Agent will negotiate an additional fee for the Exchange Agent's
continued service hereunder. This Exchange Agreement shall be a contract made
and governed under the laws of the Commonwealth of Massachusetts.
8. Miscellaneous.
(a) Governing Agreement; Amendments. The Exchange Agent hereby
acknowledges receipt of a copy of the Agreement, but except to the extent such
Agreement is specifically referenced in this Exchange Agreement, the Exchange
Agent is not charged with any duty or obligation arising under the Agreement and
the responsibilities and duties of the Exchange Agent shall be governed by this
Exchange Agreement. As between the Exchange Agent, on the one hand, and the
other parties hereto, on the other hand, this Exchange Agreement constitutes the
entire agreement with respect to the subject matter hereof. As between the other
parties hereto, this Exchange 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.
(b) Binding Effect. This Exchange 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.
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(c) Counterparts; Delivery. This Exchange 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 Exchange
Agreement may be accomplished by facsimile.
(d) 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 Exchange 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
Agreement.
(e) 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 Exchange 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Exchange
Agreement to be executed, personally or by their respective officers, hereunto
duly authorized, as of the day and year first above written.
SYBRON INTERNATIONAL CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
---------------------------------
Michael Kluger
---------------------------------
Gordie Nye
---------------------------------
Kenneth Rainin
BANKBOSTON, N.A.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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EXHIBIT 5
FORM OF LRS ACQUISITION CORP.
CLOSING CERTIFICATE
LRS Acquisition Corp., a Delaware corporation ("LRS"), hereby certifies
that:
1. This Certificate is being delivered pursuant to the provisions of
Section 8.7(a) of the Agreement and Plan of Reorganization (the "Agreement")
dated as of January ___, 1998 by and among Sybron International Corporation
("SYBRON"), Normandy Acquisition Co. ("ACQUISITION"), LRS and Liberty Partners
Holdings 5, L.L.C. ("Liberty") with the intention that it shall be relied upon
by SYBRON and ACQUISITION. Capitalized terms used but not defined herein shall
have the meaning given in the Agreement.
2. LRS has performed and complied in all material respects with all of
its obligations under the Agreement which are to be performed or complied with
by it prior to or on the date hereof.
3. The representations and warranties made by LRS in the Agreement (as
updated by any Disclosure Schedule Change) are true and correct in all material
respects as of the date hereof with the same force and effect as though said
representations and warranties had been made on the date hereof [, except as may
be described on Schedule A attached hereto].
4. The Merger, the Agreement and the transactions contemplated by the
Agreement have received the following approvals:
(a) The affirmative vote of the holders of __________ shares
of the outstanding shares of LRS Common Stock, which constitute more than a
majority of such outstanding shares;
(b) The approval of holders of _________ shares of the LRS
Preferred Stock, which constitute at least 75% of the LRS Preferred Stock; and
(c) The approval of holders of _________ shares of the LRS
Common Stock held by Liberty, Robert B. Stockman, Robert F. Johnston, Kenneth
Rainin, Joseph Mandato, Edward P. Weinsoff, William W. Crouse, Robert Clarkson,
Donna Petkanics, WS Investments Company 94A, or any permitted transferee
thereof, which constitute at least 75% of the shares of LRS Stock held by such
LRS Stockholders.
5. LRS has obtained and delivered to SYBRON consents from LRS
Optionholders holding LRS Options covering not less than ___ shares of LRS
Common Stock and consents from all holders of Nonvested Restricted Shares, in
each case approving the consummation of the transactions described in the
Agreement and, as appropriate, the conversion or exchange of the Nonvested
Restricted Shares and LRS Options as described in Sections 2.6 and 2.7 of the
Agreement.
6. Of the outstanding shares of LRS Common Stock, ________ are
Dissenting Shares on the date hereof, representing two percent (2%) or less of
the outstanding shares of LRS Common Stock. Of the outstanding shares of LRS
Preferred Stock, _________ are Dissenting Shares on the date hereof,
representing two percent (2%) or less of the outstanding shares of LRS Preferred
Stock.
7. Holder(s) of the requisite amount of LRS Preferred Stock have not
asserted their right to require LRS to redeem their LRS Preferred Stock pursuant
to Article C, Section 4I of LRS's Amended and Restated Certificate of
Incorporation.
8. Other than as described in the Agreement, no shareholder, director,
officer, agent or advisor of LRS or any direct or indirect subsidiary of LRS is
engaged in any negotiations concerning a merger, consolidation, liquidation or
dissolution of LRS or any direct or indirect subsidiary of LRS, or a sale or
lease of all or substantially all of the assets of LRS or any direct or indirect
subsidiary of LRS.
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IN WITNESS WHEREOF, this Certificate has been duly executed on behalf
of LRS on this ____ day of _________, 1998.
LRS ACQUISITION CORP.
By:
----------------------------
Name: Gordon Nye
Its: President
[TO BE ACCOMPANIED BY AN APPROPRIATE INCUMBENCY CERTIFICATE]
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EXHIBIT 6
[FORM OF OPINION TO BE DELIVERED BY KIRKLAND & ELLIS]
, 1998
---------------
Sybron International Corporation
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
We have acted as special legal counsel for LRS Acquisition Corp., a
Delaware corporation ("LRS"), and Liberty Partners Holdings 5, L.L.C., a
Delaware limited liability company ("Liberty"), in connection with the
negotiation, preparation, execution and delivery of that certain Agreement and
Plan of Reorganization (the "Agreement") dated as of January __, 1998, by and
among the Sybron International Corporation, a Wisconsin corporation ("Sybron"),
Normandy Acquisition Co. ("Acquisition"), LRS and Liberty, and the transactions
contemplated thereby. We are furnishing this opinion at the request of LRS
pursuant to Section 8.7(b) of the Agreement. Capitalized terms used and not
otherwise defined herein shall have the meanings given to such terms in the
Agreement.
Subject to the assumptions, qualifications, exclusions and other
limitations which are identified in this letter and in the schedules attached to
this letter, we advise you that:
1. Each of LRS and AC is a corporation, validly existing and in good
standing under the General Corporation Law of the State of Delaware
(the "DGCL"), and has the requisite corporate power and authority to
carry on its business as now being conducted. Liberty is a limited
liability company, validly existing and in good standing under the laws
of the State of Delaware and has the requisite limited liability
company power and authority to carry on its business as now being
conducted.
2. LRS and Liberty each have the necessary corporate or limited
liability company power and authority to enter into, execute and
deliver the Agreement, to perform its respective obligations thereunder
and to consummate the transactions contemplated thereby.
3. The execution and delivery of the Agreement by LRS and the
consummation by LRS of the transactions contemplated thereby have been
duly authorized by all necessary actions on the part of the Board of
Directors and shareholders of LRS. The execution and delivery of the
Agreement by Liberty and the consummation by Liberty of the
transactions contemplated thereby have been duly authorized by all
necessary limited liability company action on the part of Liberty.
4. The Agreement has been duly executed and delivered by each of LRS
and Liberty, and constitutes the valid and binding obligation of each
of LRS and Liberty, enforceable against each in accordance with its
terms.
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5. The execution and delivery of the Agreement by LRS does not, and the
performance of the Agreement by LRS will not: (a) violate the Amended
and Restated Certificate of Incorporation or Bylaws of LRS; (b) to our
knowledge, violate any statute or regulation covered by this letter and
typically applicable (or specifically known to us to be applicable) to
transactions of the type contemplated by the Agreement; (c) to our
knowledge, subject LRS or AC to any material fine, penalty or similar
sanction under any statute or regulation covered by this letter and
typically applicable (or specifically known to us to be applicable) to
transactions of the type contemplated by the Agreement; or (d) to our
knowledge, violate or conflict with any of the Contracts set forth on
Schedule I attached to this letter (other than as set forth on such
Schedule I).
6. The execution and delivery of the Agreement by Liberty does not, and
the performance of the Agreement by Liberty will not: (a) violate the
operating agreement and/or other governing instruments of Liberty; (b)
to our knowledge, violate any statute or regulation covered by this
letter and typically applicable (or specifically known to us to be
applicable) to transactions of the type contemplated by the Agreement;
(c) to our knowledge, subject Liberty to any material fine, penalty or
similar sanction under any statute or regulation covered by this letter
and typically applicable (or specifically known to us to be applicable)
to transactions of the type contemplated by the Agreement; or (d) to
our knowledge, violate or conflict with any contract to which Liberty
is a party.
7. To our knowledge, no suit, action or other proceeding is pending
before any court in which the consummation of the transactions
contemplated by the Agreement is restrained or enjoined or in which the
relief requested is to restrain, enjoin or prohibit the consummation of
the transactions contemplated by the Agreement.
8. The Proxy Statement (excluding the financial statements and other
financial and statistical information included or incorporated by
reference therein or omitted therefrom, and all information about, or
supplied or omitted by, Sybron and Acquisition for use in the Proxy
Statement, as to all of which we do not express any opinion), at the
date it was first mailed to the LRS Stockholders and at the time of the
LRS Special Meeting, complied as to form in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
*********
The purpose of our professional engagement by LRS and Liberty with
respect to the transactions contemplated by the Agreement was not to establish
factual matters, and preparation of the Proxy Statement and Registration
Statement involved many determinations of a wholly or partially nonlegal
character. We make no representation that we have independently verified the
accuracy, completeness or fairness of the Proxy Statement or Registration
Statement or that the actions taken in connection with the preparation of the
Proxy Statement or Registration Statement (including the actions described in
the next paragraph) were sufficient to cause the Proxy Statement or Registration
Statement to be accurate, complete or fair. We are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
Proxy Statement or the Registration Statement, except to the extent otherwise
explicitly indicated in numbered paragraph 8 above.
We can however confirm that we have participated in conferences with
representatives of LRS, representatives of Sybron and Acquisition, counsel for
Sybron and Acquisition and representatives of the independent accountants for
LRS during which disclosures in the Proxy Statement and Registration Statement
and related matters were discussed. We were not retained by LRS to serve as
counsel for any reason other than the preparation, negotiation and closing of
the transactions contemplated by the Agreement, and our knowledge about these
matters and LRS and its subsidiaries is limited.
Based upon our participation in the conferences identified in the
preceding paragraph, our understanding of applicable law and the experience we
have gained in our practice thereunder and relying as to materiality to a large
extent upon the opinions and statements of officers of LRS, we can, however,
advise you that nothing has come
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to our attention that has caused us to conclude that (i) the Registration
Statement at its effective date contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or (ii) the Proxy Statement at the
date it was first mailed to the LRS Stockholders and at the time of the LRS
Special Meeting contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading or (iii)
as of the effective date of the Registration Statement, either the Registration
Statement or the Proxy Statement appeared on its face not to be responsive in
all material respects to the requirements of Form S-4. However, with respect to
the matters contained in clauses (i), (ii) and (iii) above, we do not express
any belief with respect to the financial statements and other financial and
statistical information included or incorporated by reference therein or omitted
therefrom, or any information about, or supplied or omitted by, Sybron or
Acquisition for use in the Proxy Statement or the Registration Statement.
*********
In preparing this letter, we have relied without any independent
verification upon the assumptions recited in Schedule B to this letter and upon:
(i) information contained in certificates obtained from governmental
authorities; (ii) factual information represented to be true in the Agreement;
(iii) factual information provided to us in the Support Certificate signed by
LRS and Liberty; and (iv) factual information we have obtained from such other
sources as we have deemed reasonable. We have assumed without investigation that
there has been no relevant change or development between the dates as of which
the information cited in the preceding sentence was given, which in each case
was not more than three (3) days prior to the date hereof, and the date of this
letter and that the information upon which we have relied is accurate and does
not omit disclosures necessary to prevent such information from being
misleading. For purposes of our opinions in paragraph 1 as to the existence and
good standing of the LRS, AC and Liberty, we have relied exclusively upon a
certificate issued by a governmental authority in the relevant jurisdiction, and
such opinions are not intended to provide any conclusion or assurance beyond
that conveyed by that certificate.
While we have not conducted any independent investigation to determine
facts upon which our opinions are based or to obtain information about which
this letter advises you, we confirm that we do not have any actual knowledge
which has caused us to conclude that our reliance and assumptions cited in the
preceding paragraph are unwarranted or that any information supplied in this
letter is wrong. The term "knowledge" whenever it is used in this letter with
respect to our firm means conscious awareness at the time this letter is
delivered on the date it bears by the following Kirkland & Ellis lawyers who
have had significant involvement with negotiation or preparation of the
Agreement and who are the only Kirkland & Ellis lawyers who have had significant
involvement in the negotiation or preparation of the Agreement (herein called
our "Designated Transaction Lawyers"): Edward T. Swan, Daniel J. Eisner, John H.
Moore, Donald E. Rocap, Keith E. Villmow, Herwig Schlunk, Toni B. Merrick,
Walter H. Lohmann, Jr., Tefft W. Smith, Marc L. Kovner, and Jeanne M. Moore.
Our advice on the legal issues addressed in this letter is based
exclusively on the internal law of Illinois, the federal law of the United
States and the DGCL, and we have assumed that, notwithstanding the parties'
choice of Delaware law with respect to the Agreement, such Agreement would be
sought to be enforced in an Illinois court under Illinois law and the DGCL and
such court would determine that Illinois law and the DGCL governs and controls
the interpretation of the Agreement. We advise you that issues addressed by this
letter may be governed in whole or in part by other laws, but we express no
opinion as to whether any relevant difference exists between the laws upon which
our opinions are based and any other laws which may actually govern. Our
opinions are subject to all qualifications in Schedule A and do not cover or
otherwise address any law or legal issue which is identified in the attached
Schedule C or any provision in the Agreement of any type identified in Schedule
D. Provisions in the Agreement which are not excluded by Schedule D or any other
part of this letter or its attachments are called the "Relevant Agreement
Terms."
Our advice on each legal issue addressed in this letter represents our
opinion as to how that issue would be resolved were it to be considered by the
highest court of the jurisdiction upon whose law our opinion on that issue is
based. The manner in which any particular issue would be treated in any actual
court case would depend in part
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on facts and circumstances particular to the case, and this letter is not
intended to guarantee the outcome of any legal dispute which may arise in the
future. It is possible that some Relevant Agreement Terms may not prove
enforceable for reasons other than those cited in this letter should an actual
enforcement action be brought, but (subject to all the exceptions,
qualifications, exclusions and other limitations contained in this letter) such
unenforceability would not in our opinion prevent you from realizing the
principal benefits purported to be provided by the Relevant Agreement Terms.
This letter speaks as of the time of its delivery on the date it bears.
We do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which our Designated Transaction Lawyers did
not have actual knowledge at that time, by reason of any change subsequent to
that time in any law covered by any of our opinions, or for any other reason.
The attached schedules are an integral part of this letter, and any term defined
in this letter or any schedule has that defined meaning wherever it is used in
this letter or in any schedule to this letter.
You may rely upon this letter only for the purpose served by the
provision in the Agreement cited in the initial paragraph of this letter in
response to which it has been delivered. Without our written consent: (i) no
person other than you may rely on this letter for any purpose; (ii) this letter
may not be cited or quoted in any financial statement, prospectus, private
placement memorandum or other similar document other than the Proxy Statement or
the Registration Statement; (iii) this letter may not be cited or quoted in any
other document or communication which might encourage reliance upon this letter
by any other person or for any purpose excluded by the restrictions in this
paragraph; and (iv) copies of this letter may not be furnished to anyone for
purposes of encouraging such reliance.
Sincerely,
Kirkland & Ellis
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SCHEDULE A
GENERAL QUALIFICATIONS
All of our opinions ("our opinions") in the letter to which this
Schedule is attached ("our letter") are subject to each of the qualifications
set forth in this Schedule.
1. Bankruptcy and Insolvency Exception. Each of our opinions is subject
to the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws. This exception includes:
a. the Federal Bankruptcy Code and thus comprehends, among
others, matters of turnover, automatic stay, avoiding powers,
fraudulent transfer, preference, discharge, conversion of a
non-recourse obligation into a recourse claim, limitations on
ipso facto and anti-assignment clauses and the coverage of
pre-petition security agreements applicable to property
acquired after a petition is filed;
b. all other Federal and state bankruptcy, insolvency,
reorganization, receivership, moratorium, arrangement and
assignment for the benefit of creditors laws that affect the
rights of creditors generally or that have reference to or
affect only creditors of specific types of debtors;
c. state fraudulent transfer and conveyance laws; and
d. judicially developed doctrines in this area, such as
substantive consolidation of entities and equitable
subordination.
2. Equitable Principles Limitation. Each of our opinions is subject to the
effect of general principles of equity, whether applied by a court of
law or equity. This limitation includes principles:
a. governing the availability of specific performance, injunctive
relief or other equitable remedies, which generally place the
award of such remedies, subject to certain guidelines, in the
discretion of the court to which application for such relief
is made;
b. affording equitable defenses (e.g., waiver, laches and
estoppel) against a party seeking enforcement;
c. requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its
enforcement;
d. requiring reasonableness in the performance and enforcement of
an agreement by the party seeking enforcement of the contract;
e. requiring consideration of the materiality of (i) a breach and
(ii) the consequences of the breach to the party seeking
enforcement;
f. requiring consideration of the impracticability or
impossibility of performance at the time of attempted
enforcement; and
g. affording defenses based upon the unconscionability of the
enforcing party's conduct after the parties have entered into
the contract.
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3. Other Qualifications. Each of our opinions is subject to the effect
of rules of law that:
a. may, where less than all of a contract may be unenforceable,
limit the enforceability of the balance of the contract to
circumstances in which the unenforceable portion is not an
essential part of the agreed exchange; and
b. govern and afford judicial discretion regarding the
determination of damages and entitlement to attorneys' fees
and other costs.
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SCHEDULE B
ASSUMPTIONS
For purposes of our letter, we have relied, without investigation, upon
each of the following assumptions:
1. Each of Sybron and Acquisition are existing and in good standing in
their respective jurisdiction of organization.
2. The Agreement constitutes valid and binding obligations of Sybron and
Acquisition and its enforceable against Sybron and Acquisition in
accordance with its terms (subject to qualifications, exclusions and
other limitations similar to those applicable to our letter).
3. Sybron and Acquisition have satisfied those legal requirements that are
applicable to it to the extent necessary to entitle it to enforce the
Agreement against LRS or Liberty.
4. Each document submitted to us for review is accurate and complete, each
such document that is an original is authentic, each such document that
is a copy conforms to an authentic original, and all signatures (other
than those of or on behalf of LRS or Liberty) on each such document are
genuine.
5. There has not been any mutual mistake of fact or misunderstanding,
fraud, duress, or undue influence.
6. The conduct of the parties to the Agreement has complied with any
requirement of good faith, fair dealing, and conscionability.
7. Each of Sybron and Acquisition have acted in good faith and without
notice of any defense against the enforcement of any rights created by,
or adverse claim to any property transferred as part of, the
transactions effected under the Agreement (herein called the
"Transactions").
8. There are no agreements or understandings among the parties, written or
oral, and there is no usage of trade or course or prior dealing among
the parties that would, in either case, define, supplement or qualify
the terms of the Agreement.
9. All parties to the Transactions will act in accordance with, and will
refrain from taking any action that is forbidden by, the terms and
conditions of the Agreement.
10. Neither Sybron, Acquisition, LRS nor Liberty will in the future take
any discretionary action (including a decision not to act) permitted
under the Agreement that would result in a violation of law or
constitute a breach or default under any other agreements or court
orders to which such person or entity may be subject.
11. All information required to be disclosed by Sybron or Acquisition in
connection with any consent or approval by LRS's Board of Directors or
stockholders (or equivalent governing group) and all other information
required to be disclosed by Sybron or Acquisition in connection with
any issue relevant to our opinions has in fact been fully and fairly
disclosed to all persons to whom it is required to be disclosed.
12. Each of Sybron and Acquisition has obtained (and will in the future
obtain) all permits and governmental approvals required, and has taken
(and will in the future take) all actions required, relevant to its
consummation of the Transactions or its performance of the Agreement.
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SCHEDULE C
EXCLUDED LAW AND LEGAL ISSUES
None of the opinions or advice contained in our letter covers or
otherwise addresses any of the following laws, regulations or other governmental
requirements or legal issues:
1. the statutes and ordinances, the administrative decisions and the rules
and regulations of counties, towns, municipalities and special
political subdivisions and judicial decision to the extent that they
deal with any of the foregoing;
2. fraudulent transfer and fraudulent conveyance laws;
3. Federal and state tax laws and regulations;
4. Federal and state securities laws and regulations, other than (a) the
matters contained in paragraph 8 of our letter and (b) the standards
set forth in clauses (i), (ii) and (iii) of the third full paragraph of
page 3 of our letter;
5. antitrust laws or trade regulations, other than the pre-merger
notification requirements of the Hart-ScottRodino Antitrust
Improvements Act of 1976;
6. Federal and state statutes of general application to the extent they
provide for criminal prosecution (e.g., mail fraud and wire fraud
statutes);
7. the effect of any law, regulation or order which hereafter becomes
effective.
We have not undertaken any research for purposes of determining whether
LRS, AC, Liberty or any of the Transactions which may occur in connection with
the Agreement is subject to any law or other governmental requirement other than
to those laws and requirements which in our experience would generally be
recognized as applicable in the absence of research by lawyers in Illinois, and
none of our opinions covers any such law or other requirement unless (i) one of
our Designated Transaction Lawyers had actual knowledge of its applicability at
the time our letter was delivered on the date it bears and (ii) it is not
excluded from coverage by other provisions in our letter or in any Schedule to
our letter.
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SCHEDULE D
EXCLUDED PROVISIONS
None of the opinions in the letter to which this Schedule is attached
covers or otherwise addresses any of the following types of provisions which may
be contained in the Agreement:
1. Choice-of-law provisions.
2. Covenants not to compete, including without limitation covenants not to
interfere with business or employee relations, covenants not to solicit
customers, and covenants not to solicit or hire employees.
3. Indemnification for negligence, willful misconduct or other wrongdoing
or any indemnification for liabilities arising under securities laws.
4. Waivers of (i) legal or equitable defenses, (ii) rights to damages,
(iii) rights to counter claim or set off, (iv) statutes of limitations,
(v) rights to notice, and (vi) the benefits of statutory, regulatory,
or constitutional rights, unless and to the extent the statute,
regulation, or constitution explicitly allows waiver.
5. Agreements to submit to the jurisdiction of any particular court or
other governmental authority (either as to personal jurisdiction and
subject matter jurisdiction); provisions restricting access to courts;
waiver of the right to jury trial; waiver of service of process
requirements which would otherwise be applicable; and provisions
otherwise purporting to affect the jurisdiction and venue of courts.
6. Provisions which purport to award attorneys' fees solely to one party.
7. Confidentiality agreements.
8. Provisions, if any, which are contrary to the public policy of any
jurisdiction.
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SYBRON INTERNATIONAL CORPORATION
411 East Wisconsin Avenue
24th Floor
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
We have acted as Mexican counsel for LRS Acquisition Corp., a Delaware
corporation ("LRS"), in connection with the transactions contemplated by an
Agreement and Plan of Reorganization dated as of January ___, 1998 (the
"Agreement") by and among Sybron International Corporation ("SYBRON"), Normandy
Acquisition Co. ("ACQUISITION"), LRS and Liberty Partners Holdings 5, L.L.C. We
are furnishing this opinion at the request of LRS pursuant to Section 8.7(b) of
the Agreement.
In rendering this opinion, we have examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction, of such corporate
records, documents, certificates of corporate and public officials and other
instruments, and have made such other investigations, as in our judgment are
necessary or appropriate to enable us to render the opinions expressed below.
We are qualified to practice law in Mexico. We do not express any opinion herein
concerning any laws, domestic or foreign, other than the laws of Mexico.
Based upon the foregoing, and subject to the qualifications, assumptions and
limitations set forth herein, it is our opinion that:
1. Maquiladora ACI-MEX, S.A. de C.V. is a corporation duly incorporated,
validly existing and in good standing under the laws of Mexico, and has
the requisite corporate power and authority to carry on its business as
now being conducted.
2. To the best of our knowledge, the entire authorized capital stock of
Maquiladora ACI-MEX, S.A. de C.V. consists of 1,000 shares of Series
"A" Common Stock, par value $1.00 peso Mex. Cy., per share, of which
1,000 shares are issued and outstanding, all of which (other than one
director's share) are owned by "A" Company Orthodontics, Inc. and
6,915,704 shares of Series "B" Common Stock, par value $1.00 peso Mex.
Cy., per share, of which 6,915,704 shares are issued and outstanding,
all of which are owned by "A" Company Orthodontics, Inc.
3. The outstanding shares of Series "A" Common Stock and Series "B" Common
Stock of Maquiladora Aci-Mex, S.A. de C.V. have been duly authorized
and validly issued and are fully paid and nonassessable.
4. To the best of our knowledge, there are no options, warrants,
conversion rights or other rights other than the shareholders' right of
first refusal to subscribe for or purchase any capital stock of
Maquiladora Aci-Mex, S.A. de C.V.
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SYBRON INTERNATIONAL CORPORATION
January 16, 1998
Page 2
The opinions set forth above are delivered to you in connection with the
transactions described in the Agreement. This opinion letter is rendered solely
for your information and assistance in connection with such transactions
described in the Agreement and may not be provided to, or used or relied upon
by, any other person or for any other purpose without our prior written consent.
Very truly yours,
BAKER & MCKENZIE
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EXHIBIT 6 -- ADDENDUM
In addition to the forms of opinions attached to the Agreement as Exhibit 6, the
LRS Counsel Opinions shall include legal opinions from counsel reasonably
acceptable to SYBRON with respect to ACIE, AC GmbH, AC Netherlands and AC Europe
as follows:
1. _______________ is a corporation duly incorporated, validly existing
and in good standing under the Laws of _____________, and has the requisite
corporate power and authority to carry on its business as now being conducted.
2. The entire authorized capital stock of _____________ consists of
____ shares of Common Stock, par value $___ per share, of which ____ shares are
issued and outstanding, all of which are owned by ___________________.
3. All of the outstanding capital stock of ____________ is duly
authorized, validly issued, fully paid and nonassessable.
4. To our knowledge, there are no options, warrants, conversion rights
or other rights to subscribe for or purchase any capital stock of
________________.
The LRS Counsel Opinions shall also include legal opinions from counsel
reasonably acceptable to SYBRON with respect to LRS and AC as follows:
1. LRS's authorized capital stock consists of (a) twelve thousand
(12,000) shares of Common Stock, par value $0.01 per share, of which [seven
thousand seven hundred fifty-five (7,755)] shares are issued and outstanding,
(b) five thousand (5,000) shares of Series A Preferred Stock, par value $1.00
per share, of which 4,110.69 shares are issued and outstanding, and (c) seven
thousand (7,000) shares of Series B Preferred Stock, $1.00 par value, of which
5,192.65 shares are issued and outstanding. To the best of our knowledge, such
outstanding shares of Common Stock and Preferred Stock are held of record by the
Persons so identified in the Disclosure Schedule.
2. AC's authorized capital stock consists of two thousand five hundred
(2,500) shares of Common Stock, par value $1.00 per share, all of which shares
are issued and outstanding and, to the best of our knowledge, held of record by
LRS.
3. The outstanding shares of Common Stock and Preferred Stock of LRS
and the outstanding shares of Common Stock of AC have been duly authorized and
validly issued and are fully paid and nonassessable.
4. To the best of our knowledge, except as set forth on Schedule I,
there are no options, warrants, conversion privileges, preemptive rights or
other rights presently outstanding to subscribe for or purchase any of the
authorized but unissued capital stock of LRS or of AC, other than rights created
in connection with the transactions contemplated by the Agreement, options for
437 shares issued under the LRS 1994 Stock Plan and a LRS Common Stock Purchase
Warrant dated June 16, 1994 issued to Liberty Partners Holdings 5, L.L.C.
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EXHIBIT 7
FORM OF TAX OPINION LETTER
, 1998
--------------
LRS Acquisition Corp.
9900 Old Grove Road
San Diego, CA 92131
RE: OPINION WITH RESPECT TO THE MERGER OF NORMANDY ACQUISITION
CO., A SUBSIDIARY OF SYBRON INTERNATIONAL CORPORATION, WITH
AND INTO LRS ACQUISITION CORP.
Ladies and Gentlemen:
We have acted as counsel for Sybron International Corporation, a
Wisconsin corporation ("SYBRON"), and Normandy Acquisition Co., a Delaware
corporation ("ACQUISITION"), in connection with the negotiation, preparation,
execution and delivery of an Agreement and Plan of Reorganization dated as of
January __, 1998 (the "Agreement") by and among SYBRON, ACQUISITION, LRS
Acquisition Corp. ("LRS") and Liberty Partners Holdings 5, L.L.C., and the
transactions contemplated thereby. We are furnishing this opinion at the request
of SYBRON and ACQUISITION pursuant to Section 9.9 of the Agreement as to certain
federal income tax matters. Capitalized terms not otherwise defined herein have
the meanings assigned to them in the Agreement.
In rendering our opinion, we have reviewed the Agreement and such other
materials as we have deemed necessary or appropriate as a basis for our opinion.
We have assumed that the Merger provided for in the Agreement will be
consummated in accordance with the Agreement. We have also relied upon the
accuracy and completeness of the representations contained in separate letters
received by us from SYBRON, LRS, certain LRS Stockholders and the LRS
Warrantholder and have assumed that such representations will be accurate and
complete as of the Effective Time of Merger, which representations we have
neither investigated nor verified. In addition, we have considered the
applicable provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury Regulations, pertinent judicial authorities, and rulings of
the Internal Revenue Service (the "I.R.S.").
Based upon the foregoing, it is our opinion that for federal income tax
purposes: (i) the Merger will be treated as a reorganization within the meaning
of Section 368(a) of the Code; (ii) SYBRON, ACQUISITION and LRS will each be a
party to that reorganization within the meaning of Section 368(b) of the Code;
(iii) no gain or loss will be recognized by SYBRON, ACQUISITION or LRS as a
result of the Merger; (iv) no gain or loss will be recognized by the LRS
Stockholders and the LRS Warrantholder with respect to the exchange of their
shares of LRS Common Stock (excluding Nonvested Restricted Shares), shares of
LRS Preferred Stock or the LRS Warrant for Sybron Stock in the Merger (other
than with respect to any cash paid in lieu of fractional shares of SYBRON
Stock); (v) the tax basis of the shares of Sybron Stock into which shares of LRS
Common Stock (excluding Nonvested Restricted Shares), shares of LRS Preferred
Stock or the LRS Warrant are converted will be the same as the basis
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, 1998
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of the shares of LRS Common Stock, shares of LRS Preferred Stock or the LRS
Warrant converted into such Sybron Stock, reduced by any amount allocable to the
fractional share interests for which cash is received; and (vi) the holding
period for shares of Sybron Stock into which shares of LRS Common Stock
(excluding Nonvested Restricted Shares) or shares of LRS Preferred Stock are
converted will include the period that such shares of LRS Common Stock or shares
of LRS Preferred Stock were held by the holder, provided such shares were held
as capital assets of the holder at the Effective Time of Merger. There can be no
assurance that contrary positions may not be asserted by the I.R.S.
No Person other than SYBRON, ACQUISITION, LRS, the LRS Stockholders and
the LRS Warrantholder may rely on this opinion. No Person may rely on this
opinion for any purpose other than for determining the federal income tax
consequences of the Merger. No opinion is expressed with respect to the federal
income tax treatment arising out of the Merger and/or the other transactions
contemplated by the Agreement of the LRS Optionholders with respect to the LRS
Options or the holders of Nonvested Restricted Shares with respect to the
Nonvested Restricted Shares. No opinion is expressed as to the holding period of
the shares of Sybron Stock into which the LRS Warrant is converted.
The opinions expressed herein are given as of the date of this letter,
are intended to apply only to those facts and circumstances that exist as of the
date hereof, and we assume no obligation or responsibility to update or
supplement this opinion to reflect any facts or circumstances occurring after
the date hereof that would alter the opinions contained herein.
Very truly yours,
QUARLES & BRADY
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[TO BE TYPED ON LRS LETTERHEAD]
, 1998
--------------
Quarles & Brady
411 East Wisconsin Avenue
Milwaukee WI 53202-4497
RE: OPINION WITH RESPECT TO THE MERGER OF NORMANDY ACQUISITION
CO., A SUBSIDIARY OF SYBRON INTERNATIONAL CORPORATION, INTO
LRS ACQUISITION CORP. AND LIBERTY PARTNERS HOLDINGS 5, L.L.C.
Ladies and Gentlemen:
We have requested your opinion as to certain federal income tax
consequences of the proposed merger (the "Merger") of Normandy Acquisition Co.,
a Delaware corporation ("ACQUISITION") and a subsidiary of Sybron International
Corporation, a Wisconsin corporation ("SYBRON"), into LRS Acquisition Corp., a
Delaware corporation ("LRS"). Capitalized terms not otherwise defined herein
have the meanings assigned to them in the Agreement and Plan of Reorganization
dated as of January ___, 1998 (the "Agreement") by and among SYBRON,
ACQUISITION, LRS and Liberty Partners Holdings 5, L.L.C. In order to assist you
in rendering your opinion, LRS makes the following representations to you with
the understanding that you will rely on these representations in rendering your
opinion:
1. The fair market value of SYBRON common stock to be received by the
shareholders of LRS and the LRS Warrantholder will, in each instance, be
approximately equal to the fair market value of the LRS Common Stock, LRS
Preferred Stock or LRS Warrant exchanged therefor.
2. To the best of the knowledge of the management of LRS, there is no
plan or intention by the shareholders of LRS who own one (1) percent or more of
the LRS stock, and to the best of the knowledge of management of LRS, there is
no plan or intention on the part of the remaining shareholders of LRS, to sell,
exchange or otherwise dispose of a number of shares of SYBRON stock received in
connection with the Merger that would reduce the LRS's shareholders' ownership
of SYBRON stock to a number of shares having a value, as of the date of the
Merger, of less than 50 percent of the value of all of the formerly outstanding
stock of LRS as of the same date. For purposes of this representation, shares of
LRS stock exchanged for cash in lieu of fractional shares of SYBRON stock or
surrendered by dissenters will be treated as outstanding LRS stock on the date
of the Merger. Moreover, shares of LRS stock and shares of SYBRON stock held by
LRS shareholders and otherwise sold, redeemed or disposed of prior or subsequent
to the Merger will be considered in making this representation.
3. Following the Merger, LRS will hold at least 90 percent of the fair
market value of its net assets and at least 70 percent of the fair market value
of its gross assets and at least 90 percent of the fair market value of
ACQUISITION'S net assets and at least 70 percent of the fair market value of
ACQUISITION'S gross assets held immediately prior to the Merger. For purposes of
this representation, amounts paid by LRS to dissenters, amounts paid by LRS or
ACQUISITION to shareholders who receive cash or other property, amounts used by
LRS or ACQUISITION to pay reorganization expenses, and all redemptions and
distributions (except for regular, normal dividends) made by LRS will be
included as assets of LRS or ACQUISITION, respectively, immediately prior to the
Merger.
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4. LRS has no plan or intention to issue additional shares of its stock
that would result in SYBRON losing control of LRS within the meaning of Section
368(c) of the Internal Revenue Code of 1986, as amended (the "Code").
5. SYBRON will pay or assume only those expenses of LRS that are solely
and directly related to the proposed Merger in accordance with the guidelines
established in Rev. Rul 73-54, 1973-1 C.B. 187. Other than those expenses of LRS
paid by SYBRON, SYBRON, ACQUISITION, LRS, the shareholders of LRS, and the LRS
Warrantholder will pay their respective expenses, if any, incurred in connection
with the Merger.
6. In the Merger, shares of LRS stock representing control of LRS, as
defined in Section 368(c) of the Code, will be exchanged solely for voting stock
of SYBRON. For purposes of this representation, shares of LRS stock exchanged
for cash or other property originating with SYBRON will be treated as
outstanding LRS stock on the date of the Merger.
7. At the time of the Merger, LRS will not have outstanding any
warrants, options, convertible securities, or any other type of right pursuant
to which any person could acquire stock in LRS that, if exercised or converted,
would affect SYBRON's acquisition or retention of control of LRS, as defined in
Section 368(c) of the Code.
8. There is no intercorporate indebtedness existing between (a) LRS and
SYBRON or (b) LRS and ACQUISITION that was issued, acquired, or will be settled
at a discount.
9. LRS is not an investment company as defined in Sections
368(a)(2)(F)(iii) and (iv) of the Code.
10. On the date of the Merger, the fair market value of the property of
LRS will equal or exceed the sum of the liabilities of LRS plus the amount of
liabilities, if any, to which the property is subject.
11. No shares of ACQUISITION stock will be issued to LRS shareholders
or the LRS Warrantholder in the proposed Merger..
12. RS is not under the jurisdiction of a court in a Title 11 or
similar case within the meaning of Section 368(a)(3)(A) of the Code.
13. None of the compensation received by any shareholder-employees of
LRS will be separate consideration for, or allocable to, any of their shares of
LRS stock; none of the shares of SYBRON stock received by any
shareholder-employees will be separate consideration for, or allocable to, any
employment agreement; and the compensation paid to any shareholder-employees
will be for services actually rendered and will be commensurate with amounts
paid to third parties bargaining at arm's-length for similar services.
14. The payment of cash in lieu of fractional shares of SYBRON stock is
solely for the purpose of avoiding the expense and inconvenience to SYBRON of
issuing fractional shares and does not represent separately bargained-for
consideration. The fractional share interests of each LRS shareholder will be
aggregated, and no LRS shareholder (other than dissenters, if any) will receive
cash in an amount equal to or greater than the value of one full share of SYBRON
stock.
15. Dissenters, if any, to the Merger will be entitled to appraisal
rights in accordance with applicable Delaware law. Payments to dissenters, if
any, will be made by LRS (as the Surviving Corporation).
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16. The accrued dividends on the LRS Preferred Stock have not been
declared payable by the Board of Directors of LRS.
17. No shareholder of LRS has guaranteed the indebtedness of LRS and
its affiliates to the State Board of Administration of Florida (including
accrued and unpaid interest thereon and any prepayment penalties and/or fees
related thereto).
18. The LRS Warrant was acquired by the LRS Warrantholder as an
investment and was not issued by LRS in connection with the performance of
services.
19. The Closing Date for the transactions contemplated by the Agreement
will be after March 8, 1998.
Notwithstanding anything herein to the contrary, the undersigned make
no representations regarding any actions or conduct of LRS pursuant to SYBRON's
exercise of control over LRS after the Merger.
Very truly yours,
LRS ACQUISITION CORP.
By:
-----------------------------
Title:
--------------------------
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[TO BE TYPED ON SYBRON LETTERHEAD]
, 1998
---------------
Quarles & Brady
411 East Wisconsin Avenue
Milwaukee WI 53202-4497
RE: OPINION WITH RESPECT TO THE MERGER OF NORMANDY ACQUISITION
CO., A SUBSIDIARY OF SYBRON INTERNATIONAL CORPORATION, INTO
LRS ACQUISITION CORP.
Ladies and Gentlemen:
We have requested your opinion as to certain federal income tax
consequences of the proposed merger (the "Merger") of Normandy Acquisition Co.,
a Delaware corporation ("ACQUISITION") and a subsidiary of Sybron International
Corporation, a Wisconsin corporation ("SYBRON"), into LRS Acquisition Corp., a
Delaware corporation ("LRS"). Capitalized terms not otherwise defined herein
have the meanings assigned to them in the Agreement and Plan of Reorganization
dated as of January ___, 1998 (the "Agreement") by and among SYBRON,
ACQUISITION, LRS and Liberty Partners Holdings 5, L.L.C. In order to assist you
in rendering your opinion, SYBRON makes the following representations to you
with the understanding that you will rely on these repre sentations in rendering
your opinion:
1. The fair market value of SYBRON common stock to be received by the
shareholders of LRS and the LRS Warrantholder will, in each instance, be
approximately equal to the fair market value of the LRS Common Stock, LRS
Preferred Stock or LRS Warrant exchanged therefor.
2. Following the Merger, LRS will hold at least 90 percent of the fair
market value of its net assets and at least 70 percent of the fair market value
of its gross assets and at least 90 percent of the fair market value of
ACQUISITION'S net assets and at least 70 percent of the fair market value of
ACQUISITION'S gross assets held immediately prior to the Merger. For purposes of
this representation, amounts paid by LRS or ACQUISITION to shareholders who
receive cash or other property, amounts paid by LRS to dissenters, amounts used
by LRS or ACQUISITION to pay reorganization expenses, and all redemptions and
distributions (except for regular, normal dividends) made by LRS will be
included as assets of LRS or ACQUISITION, respectively, immediately prior to the
Merger.
3. Prior to the Merger, SYBRON will be in control of ACQUISITION within
the meaning of Section 368(c) of the Internal Revenue Code of 1986, as amended
(the "Code").
4. SYBRON has no plan or intention to cause LRS to issue additional
shares of its stock that would result in SYBRON losing control of LRS within the
meaning of Section 368(c) of the Code.
5. SYBRON has no plan or intention to liquidate LRS; to merge LRS with
or into another corporation except for the possible merger of other corporations
into LRS, with LRS being the surviving corporation; to sell or otherwise dispose
of the stock of LRS except for transfers of stock to corporations controlled by
SYBRON; or to cause LRS to sell or otherwise dispose of any of its assets or of
any of the assets acquired from ACQUISITION, except for dispositions made in the
ordinary course of business or transfers of assets to a corporation controlled
by LRS.
6. The liabilities of ACQUISITION assumed by LRS and the liabilities to
which the transferred assets of ACQUISITION are subject were incurred by
ACQUISITION in the ordinary course of its business.
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7. SYBRON will pay or assume only those expenses of LRS that are solely
and directly related to the proposed transaction in accordance with the
guidelines established in Rev. Rul. 73-54, 1973-1 C.B. 187. Other than those
expenses of LRS paid by SYBRON, SYBRON, ACQUISITION, LRS, the shareholders of
LRS, and the LRS Warrantholder will pay their respective expenses, if any,
incurred in connection with the transaction.
8. In the transaction, shares of LRS stock representing control of LRS,
as defined in Section 368(c) of the Code, will be exchanged solely for voting
stock of SYBRON. For purposes of this representation, shares of LRS stock
exchanged for cash or other property originating with SYBRON will be treated as
outstanding LRS stock on the date of the transaction.
9. At the time of the transaction, LRS will not have outstanding any
warrants, options, convertible securities, or any other type of right pursuant
to which any person could acquire stock in LRS that, if exercised or converted,
would affect Sybron's acquisition or retention of control of LRS, as defined in
Section 368(c) of the Code.
10. SYBRON does not own, nor has it owned during the past five years,
any shares of the stock of LRS.
11. Following the proposed transaction, SYBRON will cause LRS to
continue LRS's historic business or to use a significant portion of LRS's
historic business assets in a business.
12. There is no intercorporate indebtedness existing between (a) LRS
and SYBRON or (b) LRS and ACQUISITION that was issued, acquired, or will be
settled at a discount.
13. Neither SYBRON nor ACQUISITION is an investment company as defined
in Sections 368(a)(2)(F)(iii) and (iv) of the Code.
14. SYBRON has no plan or intention to redeem or otherwise reacquire
any of its stock issued in the proposed transaction.
15. No shares of ACQUISITION stock will be issued to LRS shareholders
or the LRS Warrantholder in the proposed transaction.
16. Neither SYBRON nor ACQUISITION is under the jurisdiction of a court
in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the
Code.
17. None of the compensation received by any shareholder-employees of
LRS will be separate consideration for, or allocable to, any of their shares of
LRS stock; none of the shares of SYBRON stock received by any
shareholder-employees will be separate consideration for, or allocable to, any
employment agreement; and the compensation paid to any shareholder-employees
will be for services actually rendered and will be commensurate with amounts
paid to third parties bargaining at arm's-length for similar services.
18. The payment of cash in lieu of fractional shares of SYBRON stock is
solely for the purpose of avoiding the expense and inconvenience to SYBRON of
issuing fractional shares and does not represent separately bargained-for
consideration. The fractional share interests of each LRS shareholder will be
aggregated, and no LRS shareholder (other than dissenters, if any) will receive
cash in an amount equal to or greater than the value of one full share of SYBRON
stock.
19. Dissenters, if any, to the Merger will be entitled to appraisal
rights in accordance with applicable Delaware law. Payments to dissenters, if
any, will be made by LRS (as the Surviving Corporation).
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20. The Closing Date for the transactions contemplated by the Agreement
will be after March 8, 1998.
Very truly yours,
SYBRON INTERNATIONAL CORPORATION
By:
------------------------------
Title:
---------------------------
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[TO BE DELIVERED BY KENNETH RAININ, LIBERTY PARTNERS
HOLDINGS 5, LLC, ROBERT B. STOCKMAN, ROBERT F. JOHNSTON,
WILLIAM W. CROUSE, JOSEPH MANDATO, GORDIE NYE AND
STATE BOARD OF ADMIN. OF FLORIDA]
, 1998
------------
Quarles & Brady
411 East Wisconsin Avenue
Milwaukee, WI 53202-4497
RE: OPINION WITH RESPECT TO THE MERGER OF NORMANDY ACQUISITION
CO., A SUBSIDIARY OF SYBRON INTERNATIONAL CORPORATION, INTO
LRS ACQUISITION CORP.
Ladies and Gentlemen:
In order to assist you in rendering your opinion with respect to
certain federal income tax consequences of the proposed merger of Normandy
Acquisition Co., a Delaware corporation ("ACQUISITION") and a subsidiary of
Sybron International Corporation, a Wisconsin corporation ("SYBRON"), with and
into LRS Acquisition Corp., a Delaware corporation ("LRS"), the undersigned
states that the undersigned owns beneficially ______ shares of the outstanding
common stock [and rights to purchase ____ shares of common stock] [and _____
shares of the outstanding preferred stock] [and a warrant to purchase 2,000
shares of common stock] of LRS and that the undersigned has no plan or intention
to sell, exchange or otherwise dispose of more than 40% of the shares of SYBRON
common stock to be received by the undersigned in connection with the proposed
transaction involving the merger of ACQUISITION into LRS. For purposes of this
representation, all sales, redemptions or other dispositions of stock occurring
prior to or subsequent to the proposed transaction which are a part of that
transaction (except for all fractional share interests in LRS stock which are
converted into cash) will be considered in determining whether there has been a
sale, exchange, or other disposition of LRS stock.
This representation is being delivered to you solely for the purpose of
assisting you in rendering the opinion referred to above and may not be relied
upon for any other purpose.
--------------------------------
Name:
---------------------------
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, 1998
------------
Quarles & Brady
411 East Wisconsin Avenue
Milwaukee, WI 53202-4497
RE: OPINION WITH RESPECT TO THE MERGER OF NORMANDY ACQUISITION
CO., A SUBSIDIARY OF SYBRON INTERNATIONAL CORPORATION, INTO
LRS ACQUISITION CORP.
Ladies and Gentlemen:
In order to assist you in rendering your opinion with respect to
certain federal income tax consequences of the proposed merger of Normandy
Acquisition Co., a Delaware corporation ("ACQUISITION") and a subsidiary of
Sybron International Corporation, a Wisconsin corporation ("SYBRON"), with and
into LRS Acquisition Corp., a Delaware corporation ("LRS"), the undersigned
states that it owns the right to purchase 2,000 shares of common stock of LRS
and that it acquired the LRS Warrant as an investment and not in connection with
performance of services.
This representation is being delivered to you solely for the purpose of
assisting you in rendering the opinion referred to above and may not be relied
upon for any other purpose.
LIBERTY PARTNERS HOLDINGS 5, L.L.C.
By:
--------------------------------
Its:
-------------------------------
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EXHIBIT 8
FORM OF REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as
of this ____ day of __________, 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 ___, 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 ________ 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.
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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
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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 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 connection 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;
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(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;
(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;
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(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.
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
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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.
(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
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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
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.
* * *
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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:
-----------------------------------------
R. Jeffrey Harris, Vice President -
General Counsel and Secretary
AFFILIATES: No. of Shares Received
Pursuant to the
Merger Agreement:
[Name]
[Address]
Fax No.:
[Name]
[Address]
Fax No.:
[Name]
[Address]
Fax No.:
[Name]
[Address]
Fax No.:
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EXHIBIT 9
FORM OF SYBRON INTERNATIONAL CORPORATION
CLOSING CERTIFICATE
Sybron International Corporation, a Wisconsin corporation ("SYBRON"),
hereby certifies that:
1. This Certificate is being delivered pursuant to the provisions of
Section 9.6(a) of the Agreement and Plan of Reorganization (the "Agreement")
dated as of January __, 1998 by and among SYBRON, Normandy Acquisition Co., a
Delaware corporation ("ACQUISITION"), LRS Acquisition Corp. ("LRS") and Liberty
Partners Holdings 5, L.L.C. with the intention that it shall be relied upon by
LRS.
2. SYBRON and ACQUISITION have performed and complied in all material
respects with all of their obligations under the Agreement which are to be
performed or complied with by them prior to or on the date hereof.
3. The representations and warranties made by SYBRON and ACQUISITION in
the Agreement are true and correct in all material respects as of the date
hereof with the same force and effect as though said representations and
warranties had been made on the date hereof [, except as may be described on
Schedule A attached hereto].
IN WITNESS WHEREOF, this Certificate has been duly executed on
behalf of SYBRON on this ____ day of ____________, 1998.
SYBRON INTERNATIONAL CORPORATION
By:
-------------------------------
Name:
Its:
[TO BE ACCOMPANIED BY AN APPROPRIATE INCUMBENCY CERTIFICATE]
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EXHIBIT 10
FORM OF SYBRON COUNSEL OPINION
, 1998
--------------
LRS Acquisition Corp.
Liberty Partners Holdings 5, L.L.C.
9900 Old Grove Road
San Diego, California 92131
Ladies and Gentlemen:
We have acted as counsel for Sybron International Corporation,
a Wisconsin corporation ("SYBRON"), and Normandy Acquisition Co., a Delaware
corporation ("ACQUISITION"), in connection with the negotiation, preparation,
execution and delivery of an Agreement and Plan of Reorganization dated as of
January ___, 1998 (the "Agreement") by and among SYBRON, ACQUISITION, LRS
Acquisition Corp. and Liberty Partners 5, L.L.C. ("Liberty"), and the
transactions contemplated thereby. We are furnishing this opinion at the request
of SYBRON and ACQUISITION pursuant to Section 9.6(b) of the Agreement.
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Agreement.
In rendering this opinion, we have examined such corporate
records, certificates, instruments and other documents of SYBRON and
ACQUISITION, and questions and matters of law, as we have considered necessary
and appropriate for purposes of this opinion. In giving the various opinions set
forth below, we have, with respect to factual matters, relied on certificates
and similar documents furnished by public officials and by officers of SYBRON
and ACQUISITION (which include certifications of SYBRON's and ACQUISITION's
officers of the accuracy of the representations and warranties made by SYBRON
and ACQUISITION in the Agreement).
We have assumed that: (i) all certificates of public officials
examined by us are accurate; (ii) each document submitted to us as an original
is authentic and complete; (iii) each document submitted to us as a certified or
photostatic copy conforms to an authentic original; (iv) each of the parties
(other than SYBRON and ACQUISITION) to the Agreement has duly and validly
executed and delivered the Agreement; (v) all signatures (other than the
signatures on behalf of SYBRON and ACQUISITION) on documents reviewed by us are
genuine; (vi) each person executing the Agreement (other than on behalf of
SYBRON or ACQUISITION) on behalf of such party is authorized to do so; (vii) the
obligations of each party (other than SYBRON or ACQUISITION) under the Agreement
are such party's legal, valid and binding obligations, enforceable in accordance
with the terms of the Agreement; (viii) the Agreement accurately describes and
contains the mutual understanding of the parties; (ix) there are no oral or
written statements or agreements that purport to modify, amend or vary any of
the terms of the Agreement; and (x) the certificates representing Sybron Stock
to be delivered pursuant to the Agreement will (A) conform to the specimen
thereof examined by us (including the facsimile signatures of the officers of
SYBRON thereon) and (B) have been duly countersigned by the transfer agent and
registrar for the Sybron Stock in accordance with the resolutions of the Board
of Directors of SYBRON authorizing the issuance thereof.
Based upon the foregoing, and subject to the qualifications,
assumptions and limitations set forth herein, it is our opinion that:
A-110
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LRS Acquisition Corp.
Liberty Partners Holdings 5, L.L.C.
__________, 1998
Page 2
1. SYBRON is a corporation duly incorporated, validly existing
and in active status (meaning that it has filed its most recent required annual
report and has not filed articles of dissolution) under the Laws of the State of
Wisconsin, and has the requisite corporate power and authority to carry on its
business as now being conducted.
2. ACQUISITION is a corporation duly incorporated, validly
existing and in good standing under the Laws of the State of Delaware, and has
the requisite corporate power and authority to carry on its business as now
being conducted.
3. Each of SYBRON and ACQUISITION has the necessary corporate
power and authority to enter into, execute and deliver the Agreement, to perform
its obligations thereunder and to consummate the transactions contemplated
thereby.
4. The execution and delivery of the Agreement by each of
SYBRON and ACQUISITION and the consummation by SYBRON and ACQUISITION of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of SYBRON and ACQUISITION.
5. The Agreement has been duly executed and delivered by each
of SYBRON and ACQUISITION and constitutes a valid and binding obligation of each
of SYBRON and ACQUISITION, enforceable against each in accordance with its
terms, except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar Laws generally
affecting the rights of creditors and subject to general equity principles.
6. The execution and delivery of the Agreement by each of
SYBRON and ACQUISITION do not, and the performance of the Agreement by each of
SYBRON and ACQUISITION will not, conflict with or violate: (a) the [Restated]
Articles of Incorporation or Bylaws of SYBRON or the Certificate of
Incorporation or Bylaws of ACQUISITION; (b) to our knowledge, any material
Contract to which SYBRON or ACQUISITION is a party or by which it is bound; or
(c) to our knowledge, any material federal, Wisconsin state or Delaware state
Law applicable to SYBRON or ACQUISITION or by which any of their respective
properties is bound or affected.
7. To our knowledge, no suit, action or other proceeding is
pending before any court in which the consummation of the transactions
contemplated by the Agreement is restrained or enjoined or in which the relief
requested is to restrain, enjoin or prohibit the consummation of the
transactions contemplated by the Agreement.
8. The shares of Sybron Stock to be issued pursuant to the
Agreement, as set forth in the Agreement, are duly authorized and, when issued
as contemplated by the Agreement, will be validly issued, fully paid and
nonassessable (except as otherwise provided in Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law, as judicially interpreted).
9. The Registration Statement has become effective under the
Securities Act and, to our knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending under the Securities Act.
10. The Registration Statement (excluding the financial
statements and other financial and statistical information included or
incorporated therein or omitted therefrom, and all information about, or
supplied or omitted by, the LRS Companies and Liberty for use in the
Registration Statement, as to all of which we do not
A-111
216
express any opinion), at the time it became effective under the Securities Act,
complied as to form in all material respects with the requirements of the
Securities Act and the rules and regulations thereunder.
We have participated in the preparation and filing of the
Proxy Statement and the Registration Statement and, in the course of such
preparation, in conferences with certain officers and employees of SYBRON and
ACQUISITION and representatives of the LRS Companies and Liberty with respect
thereto. Although we have not independently verified, and are not passing upon
or assuming any responsibility for, the accuracy, completeness or fairness of
the statements contained or incorporated by reference in the Proxy Statement or
the Registration Statement, during the course of such participation no facts
have come to our attention which would lead us to believe that the Proxy
Statement, at the date it was first mailed to LRS Stockholders and at the time
of the LRS Special Meeting, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or that the Registration Statement, when
it became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading (except that we do not express any
belief with respect to the financial statements and other financial and
statistical information included or incorporated by reference therein or omitted
therefrom, or any information about, or supplied or omitted by, any LRS Company
or Liberty for use in the Proxy Statement or the Registration Statement).
Each of the opinions as to enforceability of any agreement or
instrument is: (a) subject to the limitations set forth in the General
Qualifications stated in the Legal Opinion Accord of the ABA Section of Business
Law (1991), which General Qualifications are attached hereto as Schedule 1; and
(b) subject to the qualification that certain provisions of such documents may
be unenforceable in whole or in part, but the inclusion of such provisions does
not affect the validity of any such documents as a whole and each of such
documents contains legally adequate provisions for the realization of the
principal legal rights and benefits afforded by it.
The opinions expressed herein are specifically limited to the
present internal Law of the States of Delaware and Wisconsin and federal Law of
the United States of America, are given as of the date of this letter, are
intended to apply only to those facts and circumstances that exist as of the
date hereof, and we assume no obligation or responsibility to update or
supplement this opinion to reflect any facts or circumstances occurring after
the date hereof that would alter the opinions contained herein.
Whenever this opinion refers to matters within our "knowledge"
or "known to us," such reference is limited to facts within our actual knowledge
after inquiry of the attorneys who have given substantive legal attention to the
representation of SYBRON and ACQUISITION in connection with the negotiation and
preparation of the Agreement and facts represented to us by officers of SYBRON
and ACQUISITION.
The opinions set forth above are delivered to you in
connection with the transactions described in the Agreement. This opinion letter
is rendered solely for your information and assistance in connection with such
transactions described in the Agreement and may not be provided to, or used or
relied upon by, any other person or for any other purpose without our prior
written consent.
Very truly yours,
QUARLES & BRADY
A-112
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EXHIBIT 11
At the Closing, Sybron shall make cash payments to certain
employees of A Company calculated in the manner described below. These payments
shall be made by Sybron only (i) to persons who are employed by the LRS
Companies immediately prior to the Closing and (ii) in such amounts as directed
by LRS.
These payments shall be calculated as of the Closing as
follows:
1. Each Officer, Director[1], Manager, Supervisor and Select Professional of
the LRS Companies shall receive a payment equal to a specified percentage
of such employees annual base salary as of December 31, 1997. The percentages
are as follows:
Management Level % of Annual Base Salary
Officer 100%
Director 50%
Regional Managers 40%
Managers 20%
Supervisors and Select Professionals 10%
2. In addition to the payments to be made as described in 1. above, the
following individuals shall receive payments in the following amounts:
Gordon Nye $75,000
David Milner 75,000
Richard Poinsett 75,000
Chuck Madsen 25,000
Jan Doorschodt 25,000
- --------------------
[1]The term "Director" is an employment classification of the LRS
Companies and as used in this Exhibit 11 does not refer to members of the Board
of Directors of any LRS Company.
A-113
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APPENDIX B
SECTION 262 OF THE DELAWARE GENERAL CORPORATION LAW
SECTION 262. APPRAISAL RIGHTS.
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to Section 228
of this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and the
words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Sections 251 (other than a merger effected pursuant to
Section 251(g) of this title), 252, 254, 257, 258, 263 or 264 of this title:
(1) Provided, however, that no appraisal rights under this
section shall be available for the shares of any class or series of
stock, which stock, or depository receipts in respect thereof, at the
record date fixed to determine the stockholders entitled to receive
notice of and to vote at the meeting of stockholders to act upon the
agreement of merger or consolidation, were either (i) listed on a
national securities exchange or designated as a national market
system security on an interdealer quotation system by the National
Association of Securities Dealers, Inc. or (ii) held of record by
more than 2,000 holders; and further provided that no appraisal
rights shall be available for any shares of stock of the constituent
corporation surviving a merger if the merger did not require for its
approval the vote of the stockholders of the surviving corporation as
provided in subsection (f) of Section 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection,
appraisal rights under this section shall be available for the shares
of any class or series of stock of a constituent corporation if the
holders thereof are required by the terms of an agreement of merger
or consolidation pursuant to Sections 251, 252, 254, 257, 258, 263
and 264 of this title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or
resulting from such merger or consolidation, or
depository receipts in respect thereof;
b. Shares of stock of any other corporation, or
depository receipts in respect thereof, which shares
of stock (or depository receipts in respect thereof)
or depository receipts at the effective date of the
merger or consolidation will be either listed on a
national securities exchange or designated as a
national market system security on an interdealer
quotation system by the National Association of
Securities Dealers, Inc. or held of record by more
than 2,000 holders;
c. Cash in lieu of fractional shares or fractional
depository receipts described in the foregoing
subparagraphs a. and b. of this paragraph; or
d. Any combination of the shares of stock, depository
receipts and cash in lieu of fractional shares
or fractional depository receipts described in the
foregoing subparagraphs a., b. and
B-1
219
c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware
corporation party to a merger effected under Section 253 of this title
is not owned by the parent corporation immediately prior to the merger,
appraisal rights shall be available for the shares of the subsidiary
Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation
that appraisal rights under this section shall be available for the shares of
any class or series of its stock as a result of an amendment to its certificate
of incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets
of the corporation. If the certificate of incorporation contains such a
provision, the procedures of this section, including those set forth in
subsections (d) and (e) of this section, shall apply as nearly as is
practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal
rights are provided under this section is to be submitted for approval
at a meeting of stockholders, the corporation, not less than 20 days
prior to the meeting, shall notify each of its stockholders who was
such on the record date for such meeting with respect to shares for
which appraisal rights are available pursuant to subsection (b) or (c)
hereof that appraisal rights are available for any or all of the shares
of the constituent corporations, and shall include in such notice a
copy of this section. Each stockholder electing to demand the appraisal
of his shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal
of his shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of his shares. A
proxy or vote against the merger or consolidation shall not constitute
such a demand. A stockholder electing to take such action must do so by
a separate written demand as herein provided. Within 10 days after the
effective date of such merger or consolidation, the surviving or
resulting corporation shall notify each stockholder of each constituent
corporation who has complied with this subsection and has not voted in
favor of or consented to the merger or consolidation of the date that
the merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to
Section 228 or Section 253 of this title, each constituent corporation,
either before the effective date of the merger or consolidation or
within 10 days thereafter, shall notify each of the holders of any
class or series of stock of such constituent corporation who are
entitled to appraisal rights of the approval of the merger or
consolidation and that appraisal rights are available for any or all
shares of such class or series of stock of such constituent
corporation, and shall include in such notice a copy of this section;
provided that, if the notice is given on or after the effective date of
the merger or consolidation, such notice shall be given by the
surviving or resulting corporation to all such holders of any class or
series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the
effective date of the merger or consolidation, shall, also notify such
stockholders of the effective date of the merger or consolidation. Any
stockholder entitled to appraisal rights may, within 20 days after the
date of mailing of such notice, demand in writing from the surviving or
resulting corporation the appraisal of such holder's shares. Such
demand will be sufficient if it reasonably informs the corporation of
the identity of the stockholder and that the stockholder intends
thereby to demand the appraisal of such holder's shares. If such notice
did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send
a second notice before the effective date of the merger or
consolidation notifying each of the holders of any class or series of
stock of such constituent corporation that are entitled to appraisal
rights of the effective date of the merger or consolidation or (ii) the
surviving or resulting corporation shall send such a second notice to
all such holders on or within 10 days after such effective date;
provided, however, that if such second notice is sent more than 20 days
following the sending of the first notice, such second notice need only
be sent to each stockholder who is entitled to appraisal rights and who
has demanded appraisal of such holder's shares in accordance with this
subsection. An affidavit of the secretary or assistant secretary or of the
transfer agent of the corporation that is required to give either notice
that such notice has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated
B-2
220
therein. For purposes of determining the stockholders entitled to
receive either notice, each constituent corporation may fix, in advance, a
record date that shall be not more than 10 days prior to the date the notice
is given, provided, that if the notice is given on or after the effective
date of the merger or consolidation, the record date shall be such effective
date. If no record date is fixed and the notice is given prior to the
effective date, the record date shall be the close of business on the day
next preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who
has complied with subsections (a) and (d) hereof and who is otherwise entitled
to appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw his demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after his written request for such a statement is received by the surviving or
resulting corporation or within 10 days after expiration of the period for
delivery of demands for appraisal under subsection (d) hereof, whichever is
later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by one or more publications at
least one week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled
to appraisal rights. The Court may require the stockholders who have demanded
an appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as
to such stockholder.
(h) After determining the stockholders entitled to an appraisal, the
Court shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger
or consolidation, together with a fair rate of interest, if any, to be paid
upon the amount determined to be the fair value. In determining such fair
value, the Court shall take into account all relevant factors. In determining
the fair rate of interest, the Court may consider all relevant factors,
including the rate of interest which the surviving or resulting corporation
would have had to pay to borrow money during the pendency of the proceeding.
Upon application by the surviving or resulting corporation or by any
stockholder entitled to participate in the appraisal proceeding, the Court may,
in its discretion, permit discovery or other pretrial proceedings and may
proceed to trial upon the appraisal prior to the final determination of the
stockholder entitled to an appraisal. Any stockholder whose name appears on
the list filed by the surviving or resulting corporation pursuant to
subsection (f) of this section and who has submitted his certificates of stock
to the Register in Chancery, if such is required, may participate fully in all
proceedings until it is finally determined that he is not entitled to appraisal
rights under this section.
B-3
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(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to
the stockholders entitled thereto. Interest may be simple or compound, as the
Court may direct. Payment shall be so made to each such stockholder, in the
case of holders of uncertificated stock forthwith, and in the case of holders
of shares represented by certificates upon the surrender to the corporation of
the certificates representing such stock. The Court's decree may be enforced
as other decrees in the Court of Chancery may be enforced, whether such
surviving or resulting corporation be a corporation of this State or of any
state.
(j) The costs of the proceeding may be determined by the Court and
taxed upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
of the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation,
no stockholder who has demanded his appraisal rights as provided in subsection
(d) of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation); provided,
however, that if no petition for an appraisal shall be filed within the time
provided in subsection (e) of this section, or if such stockholder shall
deliver to the surviving or resulting corporation a written withdrawal of his
demand for an appraisal and an acceptance of the merger or consolidation,
either within 60 days after the effective date of the merger or consolidation
as provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an
appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding
in the Court of Chancery shall be dismissed as to any stockholder without the
approval of the Court, and such approval may be conditioned upon such terms as]
the Court deems just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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222
APPENDIX C
EXAMPLE OF MERGER PRICE CALCULATION & SUMMARY
ASSUMING MERGER OCCURRED ON JANUARY 23, 1998,
THE DATE OF THE REORGANIZATION AGREEMENT
- --------------------------------------------------------------------------------
UNADJUSTED MERGER PRICE $ 120,000,000
Less: Transaction Related Compensation (1,904,727)
----------
118,095,273
Adjustments per Merger Agreement
Section 2.7(a) Options --
Section 3.1(a) EBITDA --
Equity Adjustments per Schedule 3.1(b) (175,000)
Additional Severance Cost (195,000)
All Expenses of LRS per Schedule 3.13 (1,926,859)
Estimated Growth in Equity from Net Income 1,362,000
---------
GROSS MERGER PRICE 117,160,414
Less: Certain Indebtedness (Section 1.16) (31,393,610)
-----------
CLOSING MERGER PRICE $ 85,766,804
Plus
Exercise Price of Warrant 200,000
Aggregate Exercise Price of All LRS Options x 90% 78,660
Minus
10% of the Aggregate Original Purchase
Price for the Non-Vested Restricted Shares (820)
Minus
Preferred Stock & Accrued Dividend
Series A Preferred Stock $ 4,110,680
Accrued Dividend 21,020 (4,131,700)
------
Series B Preferred Stock 5,192,650
Accrued Dividend 1,747,064 (6,939,714)
--------- ----------
NET EQUITY MERGER PRICE $ 74,973,230
==========
Common Equity Share Equivalents 10,046.68
Price per Common Equity Share Equivalent $7,462.49
Average Sybron Stock Price $22.96145
Number of Sybron Shares per LRS
325.0008
Common Equity Share
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LRS ACQUISITION CORP.
CALCULATION OF NET MERGER PRICE & PER SHARE ALLOCATION
1.23.98
- -----------------------------------------------------------------------------------------------------------------------------
Value Number Number of
Allocation Per of Extended Sybron
Totals Share Shares Valuation Shares*
- -----------------------------------------------------------------------------------------------------------------------------
Common Equity Merger Price $ 7,462.49 7,672.99 $57,259,596 2,493,727
Non-Vested Restricted Share
Value 5,382.99 82.01 441,459 19,226
Option Value 5,192.99 437.00 2,269,337 98,832
Warrant Price 7,362.49 2,000.00 14,724,976 641,291
-------- ---------- -------
10,192.00 74,695,369 3,253,076
Exercise Price of Warrant 200,000 8,710
Exercise Price of Options (x 90%) (122.36) 78,660 3,426
Effective Repurchase of
Un-Vested SPR's (22.96) (820) (36)
Rounding Differences _____ 21 1
--
10,046.68 $74,973,230 3,265,177
========= =========== =========
*Using Average Sybron Stock Price of $22.96145.
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LRS ACQUISITION CORP.
Calculation of Net Merger Price & Per Share Allocation
1.23.98
- --------------------------------------------------------------------------------
Common Equity Merger Price
Net Equity Merger Price / 74,973,230
10,046.68 Total Shares Deemed Outstanding
7,462.49 / 22.96145 325.0008
======== ========
Non-Vested Restricted Share 72%
Value / 10,046.68 Total Shares Deemed Outstanding
---------
0.000072
x 74,973,230 Net Equity Merger Price
5,372.99
Plus 10.00 Repurchase Price of SPR's
5,382.99 / 22.96145 234.43598
======== =========
Option Value 72%
/ 10,046.68 Total Shares Deemed Outstanding
0.000072
x 74,973,230 Net Equity Merger Price
5,372.99
Less (180) Exercise Proceeds
5,192.99
x 1.00 Number of Shares per Option
5,192.99 / 22.96145 226.16124
======== =========
Warrant Price 2,000
/ 10,046.68 Total Shares Deemed Outstanding
0.199071
x 74,973,230 Net Equity Merger Price
14,924,976
Less (200,000) Exercise Proceeds
14,724,976
/ 2,000.00 Number of Shares per Warrant
7,362.49 / 22.96145 320.645691
======== ==========
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CONVERSION OF LRS SECURITIES
TO SYBRON STOCK
- --------------------------------------------------------------------------------
Series A Preferred Stock $ 4,110,680
Accrued Dividend 21,020
------
$ 4,131,700
Average Sybron Stock Price $ 22.96145
Number of Sybron Shares Attributable to
Series A Stockholders 179,940.73
Number of Series A Preferred Shares 4,110.68
Number of Sybron Shares per Shares of
Series A Preferred Stock 43.7739571
Series B Preferred Stock $ 5,192,650
Accrued Dividend 1,747,064
---------
$ 6,939,714
Average Sybron Stock Price $ 22.96145
Number of Sybron Shares Attributable to
Series B Stockholders 302,233.26
Number of Series B Preferred Shares 5,192.65
Number of Sybron Shares per Share of
Series B Preferred Stock 58.204050
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COMMON EQUITY SHARE EQUIVALENTS
- --------------------------------------------------------------------------------
Original Issue 7,000.00
Liberty Holdings Stock Warrant 2,000.00
Vested Stock Purchase Rights 672.99
SPR's and Stock Options 373.69
---------
10,046.68
=========
C-5
227
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. 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 director 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.
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.
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ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See Exhibit Index following Signatures page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
ITEM 22. 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.
(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
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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 20 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.
(8) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the effective
date of the Registration Statement through the date of responding to the
request.
(9) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the Registration Statement when it became
effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Milwaukee,
State of Wisconsin, on March 11, 1998.
SYBRON INTERNATIONAL CORPORATION
(Registrant)
By: /s/ KENNETH F. YONTZ
-----------------------------------------
Kenneth F. Yontz
Chairman of the Board, President
and Chief Executive Officer
------------------
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kenneth F. Yontz, Dennis Brown and R. Jeffrey
Harris, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and any other
regulatory authority, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their substitutes, may lawfully do or cause to be done by virtue hereof.
--------------------
Pursuant to the requirements of the Securities Act of 1933, this
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
Dennis Brown (Principal Financial Officer and
Principal Accounting Officer of the
Registrant)
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231
/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 March 11, 1998.
S-2
232
SYBRON INTERNATIONAL CORPORATION
(THE "REGISTRANT"
(COMMISSION FILE NO. 1-11091)
EXHIBIT INDEX
TO
FORM S-4 REGISTRATION STATEMENT
The following exhibits are filed with or incorporated by reference in this
Registration Statement:
EXHIBIT INCORPORATED HEREIN BY
NUMBER DESCRIPTION REFERENCE TO FILED HEREWITH
------ ----------- ---------------------- --------------
2.1 Agreement and Plan of Reorganization, Appendix A to the
dated as of January 23, 1998, by and Proxy Statement/
among Sybron International Prospectus
Corporation, Normandy Acquisition contained in this
Co., LRS Acquisition Corp. ("LRS") Registration
and Liberty Partners Holdings 5, Statement
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
4.2 Amended and Restated Credit Agreement Exhibit 4.1 to the Registrant's
dated as of July 31, 1995 (the Current Report on Form 8-K dated
"Credit Agreement"), among Sybron July 31, 1995 ("7/31/95 8-K"
International Corporation and certain
of its subsidiaries, the several
Lenders from time to time parties
thereto, Chemical Securities Inc., as
Arranger, and Chemical Bank, as
Administrative Agent for the Lenders
4.3 Form of Revolving Credit Note, dated Exhibit 4.2 to the 7/31/95 8-K
as of July 31, 1995, executed
pursuant to the Credit Agreement
4.4 Form of Term Note, dated as of Exhibit 4.3 to the 7/31/95 8-K
July 31, 1995, executed pursuant to
the Credit Agreement
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EXHIBIT INCORPORATED HEREIN BY
NUMBER DESCRIPTION REFERENCE TO FILED HEREWITH
------ ----------- ---------------------- --------------
4.5 Form of Swing Line Note, dated as of Exhibit 4.4 to the 7/31/95 8-K
July 31, 1995, executed pursuant to
the Credit Agreement
4.6 Form of Amended and Restated Parent Exhibit 4.5 to the 7/31/95 8-K
Pledge Agreement, dated as of
July 31, 1995, executed pursuant to
the Credit Agreement
4.7 Form of Amended and Restated Exhibit 4.6 to the 7/31/95 8-K
Subsidiaries Guarantee, dated as of
July 31, 1995, executed pursuant to
the Credit Agreement
4.8 Form of Amended and Restated Exhibit 4.7 to the 7/31/95 8-K
Subsidiaries Pledge Agreement, dated
as of July 31, 1995, executed
pursuant to the Credit Agreement
4.9 First Amendment, dated as of July 9, Exhibit 4.1 to the Registrant's
1996, to the Amended and Restated Form 10-Q for the quarterly period
Credit Agreement, dated as of July ended June 30, 1996 (the "6/30/96
31, 1995 (as amended, supplemented or 10-Q")
otherwise modified from time to time,
the "Credit Agreement"), among the
Registrant and certain of its
subsidiaries, the several Lenders
from time to time parties thereto,
Chase Securities Inc. (formerly known
as Chemical Securities Inc.), as
Arranger, and Chemical Bank (now
known as The Chase Manhattan Bank),
as Administrative Agent for the
Lenders
4.10 Form of Revolving Credit Note, dated Exhibit 4.2 to the 6/30/96 10-Q
as of July 9, 1996, executed pursuant
to the Credit Agreement
4.11 Form of CAF Advance Note, dated as of Exhibit 4.3 to the 6/30/96 10-Q
July 9, 1996, executed pursuant to
the Credit Agreement
4.12 Amended and Restated Parent Pledge Exhibit 4.4 to the 6/30/96 10-Q
Agreement, dated as of July 9, 1996,
executed pursuant to the Credit
Agreement
EI-2
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EXHIBIT INCORPORATED HEREIN BY
NUMBER DESCRIPTION REFERENCE TO FILED HEREWITH
------ ----------- ---------------------- --------------
4.13 Form of Amended and Restated Exhibit 4.5 to the 6/30/96 10-Q
Subsidiaries Guarantee, dated as of
July 9, 1996, executed pursuant to
the Credit Agreement
4.14 Form of Amended and Restated Exhibit 4.6 to the 6/30/96 10-Q
Subsidiaries Pledge Agreement, dated
as of July 9, 1996, executed pursuant
to the Credit Agreement
4.15 Second Amended and Restated Credit Exhibit 4.1 to the Registrant's
Agreement, dated as of April 25, Current Report on Form 8-K dated
1997, constituting the Second April 25, 1997, (the "4/25/97 8-K")
Amendment to the Amended and Restated
Credit Agreement, dated as of
July 31, 1995 (as amended,
supplemented or otherwise modified
from time to time, the "Credit
Agreement"), among the
Registrant and certain of its
subsidiaries, the several
Lenders from time to time parties
thereto, Chase Securities,
Inc., as Arranger, and The Chase
Manhattan Bank, as
Administrative Agent for
the Lenders
4.16 Form of Revolving Credit Note, dated Exhibit 4.2 to the 4/25/97 8-K
as of April 25, 1997, executed
pursuant to the Credit Agreement
4.17 Form of Term Note, dated as of Exhibit 4.3 to the 4/25/97 8-K
April 25, 1997, executed pursuant to
the Credit Agreement
4.18 Form of Swing Line Note, dated as of Exhibit 4.4 to the 4/25/97 8-K
April 25, 1997, executed pursuant to
the Credit Agreement
4.19 Form of CAF Advance Note, dated as of Exhibit 4.5 to the 4/25/97 8-K
April 25, 1997, executed pursuant to
the Credit Agreement
4.20 Form of Second Amended and Restated Exhibit 4.6 to the 4/25/97 8-K
Parent Pledge Agreement, dated as of
April 25, 1997, executed pursuant to
the Credit Agreement
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EXHIBIT INCORPORATED HEREIN BY
NUMBER DESCRIPTION REFERENCE TO FILED HEREWITH
------ ----------- ---------------------- --------------
4.21 Form of Second Amended and Restated Exhibit 4.7 to the 4/25/97 8-K
Subsidiaries Guarantee, dated as of
April 25, 1997, executed pursuant to
the Credit Agreement
4.22 Form of Second Amended and Restated Exhibit 4.8 to the 4/25/97 8-K
Subsidiaries Pledge Agreement, dated
as of April 25, 1997, executed
pursuant to the Credit Agreement
Any agreements and instruments with respect to long-term debt not exceeding 10
percent of the total assets of the Registrant and its subsidiaries on a
consolidated basis have been omitted as permitted by related instructions. The
Registrant agrees pursuant to Item 601(b)(4) of Regulation S-K to furnish to the
Securities and Exchange Commission, upon request, a copy of any such agreements
and instruments.
5.1 Opinion of Quarles & Brady as to the X
legality of the securities being
registered
8.1 Form of Tax Opinion Letter of Quarles Exhibit 7 to
& Brady Exhibit 2.1 above
23.1 Consent of KPMG Peat Marwick LLP, X
Registrant's independent auditors
23.2 Consent of Ernst & Young LLP, LRS' X
independent auditors
23.3 Consent of Quarles & Brady Contained in
Exhibit 5.1
24.1 Powers of Attorney Contained on
Signatures page in
this Registration
Statement
99.1 Form of Proxy to be used in X
connection with the Special Meeting
of LRS Stockholders
99.2 Form of Consent of Holders of LRS X
Options
99.3 Form of Consent of Holders of LRS X
Nonvested Restricted Shares
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