-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RPMHthiyiz9qq8wRbft7Zmfaj1Yo/F8R/ojjzRiwAhCZ8wlxwxeo5KfZA/ZSWNa+ HgIbeXHmIO344CQd8Kt4Pw== 0000840467-97-000002.txt : 19970116 0000840467-97-000002.hdr.sgml : 19970116 ACCESSION NUMBER: 0000840467-97-000002 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970115 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BECKMAN INSTRUMENTS INC CENTRAL INDEX KEY: 0000840467 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 951040600 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-10122 FILM NUMBER: 97506297 BUSINESS ADDRESS: STREET 1: 2500 HARBOR BLVD CITY: FULLERTON STATE: CA ZIP: 92634 BUSINESS PHONE: 7148714848 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BECKMAN INSTRUMENTS INC CENTRAL INDEX KEY: 0000840467 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY ANALYTICAL INSTRUMENTS [3826] IRS NUMBER: 951040600 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2500 HARBOR BLVD CITY: FULLERTON STATE: CA ZIP: 92634 BUSINESS PHONE: 7148714848 SC 13D 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 BIOCIRCUITS CORPORATION ---------------------------------- (Name of Issuer) Common Stock, $.001 Par Value ---------------------------------- (Title of Class of Securities) 09058W101 ---------------------------------- (CUSIP Number) William W. Davis Assistant General Counsel Beckman Instruments, Inc. 2500 Harbor Boulevard Fullerton, California 92834 (714) 773-6907 ---------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 13, 1996 ---------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d- 1(b)(3) or (4), check the following box/ /. Note: Six copies of this statement including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. Continued on following pages Page 1 of 12 Pages Exhibit Index: Page 7 SCHEDULE 13D CUSIP No. 09058W101 Page 2 of 12 1 Name of Reporting Person S.S. or I.R.S. Identification No. of Above Person Beckman Instruments, Inc. I.R.S. Identification No. 95-104-0600 2 Check the Appropriate Box if a Member of a Group* a. ( ) b. (X) 3 SEC Use Only 4 Source of Funds* WC 5 Check Box if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) / / 6 Citizenship or Place of Organization Delaware 7 Sole Voting Power Number of 1,111,727 Shares 222,345 (warrant for) Beneficially Owned By 8 Shared Voting Power Each 0 Reporting Person 9 Sole Dispositive Power With 1,111,727 222,345 (warrant for) 10 Shared Dispositive Power 0 11 Aggregate Amount Beneficially Owned by Each Reporting Person 1,334,072 12 Check Box If the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) / / 13 Percent of Class Represented By Amount in Row (11) 15.1% 14 Type of Reporting Person* CO Page 3 of 12 SCHEDULE 13D Item 1. Security and Issuer Common stock and warrant for common stock Biocircuits Corporation, a Delaware corporation 1324 Chesapeake Terrace Sunnyvale, CA 94089 Item 2. Identity and Background Beckman Instruments, Inc., a Delaware corporation 2500 Harbor Blvd. Fullerton, CA 92834 Beckman Instruments, Inc. (the Company) is a manufacturer of laboratory instrument systems, reagents and related products that are used to conduct basic scientific research and diagnostic analysis of patient samples. Schedule I, attached hereto and incorporated herein by reference, sets forth the following information for each director and executive officer of the Company: name, business address, present principal occupation or employment, the name, principal business and address of any corporation or other organization in which such employment is conducted, and citizenship. (d) During the last five years, neither the Company nor, to the best of the Company's knowledge, any of its directors or executive officers has been convicted in a criminal proceeding, excluding traffic violations or similar misdemeanors. (e) During the last five years, neither the Company nor, to the best of the Company's knowledge, any of its directors or executive officers was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State security laws or finding any violations with respect to such laws. Page 4 of 12 Item 3. Source and Amount of Funds or Other Consideration The Company acquired all of the shares of common stock and the warrant reported herein by the conversion of a convertible secured promissory note of the Issuer and from the interest due thereon. The note was issued August 15, 1995 in the amount of $3,500,000 at an interest rate of 7.125%. The Company acquired the note by payment of $3,500,000 cash from its working capital. None of the funds used to purchase the note were borrowed. Item 4. Purpose of Transaction The Company acquired the note in 1995 for investment purposes. The Company converted the note into shares of common stock and a warrant for additional shares of common stock for investment purposes with a present plan to begin selling, at its discretion, some of the shares, subject to the terms of an agreement with the Issuer as described in Item 6 herein. At the time of and as part of the conversion of the note, the Company acquired a warrant for the purchase of 222,345 shares of common stock of the Issuer at a fixed price of $3.4469311 per share. The warrant is exercisable at any time, in whole or in part, at the Company's discretion upon payment of the purchase price. From time to time the Company will review its investment in the shares and determine whether it wishes to continue to sell, hold or buy additional shares of the Issuer. The Company will consider in its evaluation the Issuer's business prospects and financial condition, the market for the shares, other opportunities available to the Company, general economic conditions, stock market conditions and other future developments. The Company's transactions in the Issuer's stock may be conducted on the open market, through privately negotiated transactions or otherwise. Except as otherwise set forth above, the Company has no present plans or intentions which relate to or would result in any of the actions described in paragraphs (a) through (j) of Item 4. Item 5. Interest In Securities of the Issuer (a) The Company beneficially owns 1,334,072 shares of the common stock of the Issuer which represents Page 5 of 12 approximately 15.1% of the Issuer's total outstanding common stock of 8,809,630 shares. Of the 1,334,072 shares that the Company beneficially owns, 222,345 shares is in the form of a warrant giving the Company the right to purchase said number of shares at a purchase price of $3.4469311 per share. To the best of the Company's knowledge, none of the persons named in Schedule I hereto own any common stock of the Issuer. (b) The Company has the sole power to exercise the warrant and the sole power to vote and to dispose of all 1,334,072 shares of the common stock. (c) The Company has not effected any transactions in shares of the common stock during the past sixty days. (d) No other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of the common stock beneficially owned by the Company. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect To Securities Of The Issuer. On August 15, 1995 the Company and the Issuer entered into a Convertible Note Purchase Agreement (the "Purchase Agreement") pursuant to which the Issuer sold and the Company purchased a convertible secured promissory note of the Issuer in the amount of $3,500,000 at an interest rate of 7.125 per cent per annum (the "Note"). The Purchase Agreement and the Note are enclosed herein as Exhibits 1 and 2, respectively. Upon certain conditions and after certain dates the terms of the Note provide that the Note can be converted into shares of common stock of the Issuer and a warrant to purchase additional shares of common stock of the Issuer. A copy of the warrant is enclosed herein as Exhibit 3. On August 15, 1995 in conjunction with the Purchase Agreement and the Note, the Issuer and the Company entered into an Investor Rights Agreement (the "Rights Agreement"). A copy of the Rights Agreement is enclosed herein as Exhibit 4. The Rights Agreement sets forth certain conditions under which, at the Company's request, the Issuer will effect registration under the Securities Act of 1933 of the shares of Page 6 of 12 common stock that the Company receives upon conversion of the Note or exercise of the warrant. On November 26, 1996, the Company and the Issuer amended the Note and the Rights Agreement as follows. The Note was amended to allow the Company to convert the Note to shares of common stock of the Issuer and a warrant at the Company's discretion at any time after November 15, 1996 (rather than December 31, 1996). In addition, the amendment limited the number of shares the Company could sell in any one 30 day period to one- twelfth of the amount of shares issued to the Company. The amendment to the Rights Agreement deleted several grounds on which the Issuer could refuse to register the shares of common stock issued to the Company. A copy of the amendment to the Note and the Rights Agreement is enclosed herein as Exhibit 5. On December 13, 1996, the Company requested the Issuer to convert the Note to shares of common stock of the Issuer and a warrant. On or about January 10, 1997 the Issuer issued to the Company 1,111,727 shares of its common stock and a warrant in the form of Exhibit 3 to purchase 222,345 shares of its common stock at a price of $3.4469311 per share. On or about January 14, 1997 the Issuer filed with the Securities and Exchange Commission a registration statement for said shares of its common stock on Form S-3. The description of the Purchase Agreement, Note, warrant, Rights Agreement and the amendment to the Note and the Rights Agreement contained hereinabove is a summary only, is not intended to be complete and is qualified in its entirety by reference to those documents, copies of which are enclosed herein as exhibits to this Schedule 13-D and incorporated herein by this reference. Except as set forth herein, neither the Company nor, to the best of the Company's knowledge, any of the persons named in Schedule I hereto has any contracts, arrangements, understandings or relationships (legal or otherwise) with respect to any securities of the Issuer, including but not limited to any contracts, arrangements, understandings or relationships concerning the transfer or voting of such securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies. Page 7 of 12 Item 7. Materials To Be Filed As Exhibits Exhibit 1. Convertible Note Purchase Agreement between the Company and the Issuer, dated August 15, 1995 (incorporated by reference to Exhibit 10.35 of the Issuer's Quarterly Report to the Securities and Exchange Commission on Form 10-Q for the quarterly period ended September 30, 1995, File No. 0-19975). Exhibit 2. Convertible Secured Promissory Note, issued by the Issuer to the Company, dated August 15, 1995 (incorporated by reference to Exhibit 10.33 of the Issuer's Quarterly Report to the Securities and Exchange Commission on Form 10-Q for the quarterly period ended September 30, 1995, File No. 0-19975). Exhibit 3. Warrant for the Purchase of Shares of Common Stock issued by the Issuer to the Company, dated as of December 13, 1996. Exhibit 4. Investor Rights Agreement between the Company and the Issuer, dated August 15, 1995 (incorporated by reference to Exhibit 10.34 of the Issuer's Quarterly Report to the Securities and Exchange Commission on Form 10-Q for the quarterly period ended September 30, 1995, File No. 0-19975). Exhibit 5. Amendment to the Convertible Note Purchase Agreement and the Investor Rights Agreement, dated November 26, 1996. Page 8 of 12 Signature After reasonable inquiry into and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: January 14, 1997 Beckman Instruments, Inc. By: /s/ D. K. Wilson Dennis K. Wilson Vice President, Finance Chief Financial Officer Page 9 of 12 SCHEDULE I Name & Business Address* Beckman Position Principal Employment & Principal Business of Employer - ----------------------- ---------------- ---------------------- Earnest H. Clark, Jr. Director Chairman and Chief 5000 Birch Street Executive Officer of the Suite 3000, 3rd Floor Friendship Group - Newport Beach, CA 92660 investment partnership Hugh K. Coble Director Vice Chairman of Fluor 3333 Michelson Drive, #339A Corporation - Irvine, CA 92730 engineering and construction company Carolyne K. Davis, Ph.D. Director Advisor to Ernst & Young 1225 Connecticut Ave. N.W. - certified public Room 2025 accountants Washington, D.C. 20036 Dennis C. Fill Director Chairman and Chief 22100 Bothell Everett Highway Executive Officer of Bothell, WA 98041 Advanced Technology Laboratories, Inc. - manufacturer of medical ultrasound systems James T. Glover** Executive Officer Vice President and Controller of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products Paul Glyer** Executive Officer Treasurer of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products Charles A. Haggerty Director Chairman, President and 8105 Irvine Center Drive Chief Executive Officer Irvine, CA 92718 of Western Digital Corporation - manufacturer of hard disk drives Page 10 of 12 Gavin S. Herbert Director Director of Allergan, 2525 Dupont Drive Inc. - provider of eye Irvine, CA 92715 care and specialty therapeutic products Dr. William N. Kelley Director Chief Executive Officer 21 Penn Tower of the University of 3400 Spruce Street Pennsylvania Medical Philadelphia, PA 19104 Center and Health System, Dean of the School of Medicine and Executive Vice President of the University Francis P. Lucier Director Partner of Hartland & Bank One Building, 12th floor Company - consultants 600 Superior Avenue East for management of Cleveland, OH 44114 pension finance planning policy William H. May** Executive Officer Vice President, General Counsel and Secretary of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products Fidencio M. Mares** Executive Officer Vice President, Human Resources of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products C. Roderick O'Neil Director Chairman of O'Neil 32 Fairview Terrace Associates - investment South Glastonbury, CT 06073 management consulting firm Louis T. Rosso** Executive Officer Chairman and Chief and Director Executive Officer of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products Page 11 of 12 Bruce A. Tatarian** Executive Officer Vice President, Field Operations - Emerging Markets of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products Arthur A. Torrellas** Executive Officer Vice President, Field Operations - North America/Europe of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products John P. Wareham** Executive Officer President and Chief and Director Operating Officer of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products Dennis K. Wilson** Executive Officer Vice President, Finance and Chief Financial Officer of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products Betty Woods Director President and Chief 7001 220th St. S.W. Bldg. 3 Executive Officer of Mountlake Terrace, WA 98043 Blue Cross of Washington and Alaska - health care contractor Albert R. Ziegler** Executive Officer Vice President, Diagnostics Development Center of Beckman Instruments, Inc. - manufacturer of laboratory instrument systems and related products Page 12 of 12 ______________________________ * Except for Albert R. Ziegler, a citizen of Switzerland, and Dennis C. Fill, a citizen of the United Kingdom and the United States, all of the directors and executive officers are citizens of the United States. ** Business address is Beckman Instruments, Inc., 2500 Harbor Boulevard, Fullerton, California 92834. EX-3 2 EXHIBIT 3 THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. BIOCIRCUITS CORPORATION WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK No. 1996-B1 222,345 shares FOR VALUE RECEIVED, BIOCIRCUITS CORPORATION, a Delaware corporation (the "Company"), with its principal office at 1324 Chesapeake Terrace, Sunnyvale, California 94089, hereby certifies that Beckman Instruments, Inc. ("Holder"), or its assigns, in consideration for payment of $100.00, is entitled, subject to the provisions of this Warrant and pursuant to the terms of that certain Convertible Secured Promissory Note dated August 15, 1995, as amended, (the "Note") to purchase from the Company, at any time before 5:00 p.m. (Pacific Standard Time) August 15, 2000 (the "Expiration Date"), such number of fully paid and nonassessable shares of Common Stock of the Company as set forth above, subject to adjustment as hereinafter provided. Holder may purchase such number of shares of Common Stock at a purchase price per share of $3.4469311 (the "Exercise Price"). The term "Common Stock" shall mean the aforementioned Common Stock of the Company, together with any other equity securities that may be issued by the Company in addition thereto or in substitution therefor as provided herein. The number of shares of Common Stock to be received upon the exercise of this Warrant and the price to be paid for a share of Common Stock are subject to adjustment from time to time as hereinafter set forth. The shares of Common Stock deliverable upon such exercise, as adjusted from time to time, are hereinafter sometimes referred to as "Warrant Shares." Section 1. EXERCISE OF WARRANT. This Warrant may be exercised in whole or in part on any business day on or prior to the Expiration Date by presentation and surrender hereof to the Company at its principal office at the address set forth in the initial paragraph hereof (or at such other address as the Company may hereafter notify Holder in writing) with the Purchase Form annexed hereto duly executed and accompanied by proper payment of the Exercise Price in lawful money of the United States of America in the form of a check, subject to collection, for the number of Warrant Shares specified in the Purchase Form. If this Warrant should be exercised in part only, the Company shall, upon surrender of this Warrant, execute and deliver a new Warrant evidencing the rights of Holder thereof to purchase the balance of the Warrant Shares purchasable hereunder. Upon receipt by the Company of this Warrant and such Purchase Form, together with proper payment of the Exercise Price, at such office, Holder shall be deemed to be the Holder of record of the Warrant Shares, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to Holder. The Company shall pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of the Warrant Shares. Section 2. RESERVATION OF SHARES. The Company hereby agrees that at all times there shall be reserved for issuance and delivery upon exercise of this Warrant all shares of its Common Stock or other shares of capital stock of the Company from time to time issuable upon exercise of this Warrant. All such shares shall be duly authorized and, when issued upon such exercise in accordance with the terms of this Warrant, shall be validly issued, fully paid and nonassessable, free and clear of all liens, securities interests, charges and other encumbrances or restrictions on sale (other than as provided in the Company's certificate of incorporation and any restrictions on sale set forth herein or pursuant to applicable federal and state securities laws) and free and clear of all preemptive rights. Section 3. FRACTIONAL INTEREST. The Company will not issue a fractional share of Common Stock upon exercise of a Warrant. Instead, the Company will deliver its check for the Exercise Price of the fractional share. The Exercise Price of a fraction of a share is determined as follows: multiply the Exercise Price of a full share by the fraction of a share and round the result to the nearest cent. Section 4. ASSIGNMENT OR LOSS OF WARRANT. (a) Except as provided in Section 9, Holder shall be entitled, without obtaining the consent of the Company, to assign its interest in this Warrant in whole or in part to any person or persons. Subject to the provisions of Section 9, upon surrender of this Warrant to the Company or at the office of its stock transfer agent or warrant agent, with the Assignment Form annexed hereto duly executed and funds sufficient to pay any transfer tax, the Company shall without charge, execute and deliver a new Warrant or Warrants in the name of the assignee or assignees named in such instrument of assignment (any such assignee will then be a "Holder" for purposes of this Warrant) and, if Holder's entire interest is not being assigned, in the name of Holder, and this Warrant shall promptly be canceled. (b) The Company shall issue a new Warrant in place of any previously issued Warrant alleged to have been lost, stolen or destroyed, upon such terms and conditions as the Company's Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction (provided that an affidavit of Holder will be satisfactory for such purpose) and the giving of such indemnity as the Company's Board of Directors may request for the protection of the Company or transfer agent or registrar (provided that the Holder's own indemnification agreement in form reasonably satisfactory to the Company shall under all circumstances be satisfactory, and no bond shall be required). Upon surrender of any previously issued Warrant that has been mutilated, the Company shall issue a new Warrant in place thereof. Section 5. RIGHTS OF HOLDER. Holder shall not, by virtue hereof, be entitled to any rights of a stockholder in the Company, either at law or equity, and the rights of Holder are limited to those expressed in this Warrant. Nothing contained in this Warrant shall be construed as conferring upon Holder hereof the right to vote or to consent or to receive notice as a stockholder of the Company on any matters or with respect to any rights whatsoever as a stockholder of the Company. No dividends or interest shall be payable or accrued in respect of this Warrant or the interest represented hereby or the Warrant Shares purchasable hereunder until, and only to the extent that, this Warrant shall have been exercised in accordance with its terms. Section 6. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES. The number and kind of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject to adjustment from time to time upon the beginning of certain events, as follows: (a) Adjustment for Change in Capital Stock. If at any time after December 13, 1996, the Company: (A) pays a dividend or makes a distribution on its Common Stock in shares of its Common Stock; (B) subdivides its outstanding shares of Common Stock into a greater number of shares; (C) combines its outstanding shares of Common Stock into a smaller number of shares; (D) makes a distribution on its Common Stock in shares of its capital stock other than Common Stock; or (E) issues by reclassification of its Common Stock any shares of its capital stock; then the Exercise Price in effect immediately prior to such action shall be adjusted so that Holder may receive upon exercise of this Warrant and payment of the same aggregate consideration the number of shares of capital stock of the Company which Holder would have owned immediately following such action if Holder had exercised this Warrant immediately prior to such action. The adjustment shall become effective immediately after the record date in the case of a dividend or distribution and immediately after the effective date in the case of a subdivision, combination or reclassification. (b) Minimum Adjustment. No adjustment in the Exercise Price of this Section 6 shall be required unless such adjustment would require an increase or decrease of at least ($.05) in such Exercise Price; provided, however, that any adjustments which by reason of this subsection are not required to be made, shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 6 shall be made to the nearest cent or to the nearest share, as the case may be. (c) Deferral of Issuance or Payment. In any case in which an event covered by this Section 6 shall require that an adjustment in the Exercise Price be made effective as of a record date, the Company may elect to defer until the occurrence of such event (i) issuing to Holder, if this Warrant is exercised after such record date, the shares of Common Stock and other capital stock of the Company, if any, issuable upon such exercise over and above the shares of common stock or other capital stock of the Company, if any, issuable upon such exercise on the basis of the Exercise Price in effect prior to such adjustment, and (ii) paying to Holder by check any amount in lieu of the issuance of fractional shares pursuant to Section 3. (d) When No Adjustment Required. No adjustment need be made for a change in the par value or no par value of the Common Stock. To the extent this Warrant becomes exercisable into cash, no adjustment need be made thereafter as to the cash, and interest will not accrue on the cash. (e) Notice of Certain Actions. In the event that: (A) the Company shall authorize the issuance to all holders of its Common Stock of rights, warrants, options or convertible securities to subscribe for or purchase shares of its Common Stock or of any other subscription rights, warrants, options or convertible securities; or (B) the Company shall authorize the distribution to all holders of its Common Stock of evidences of its indebtedness or assets (other than dividends paid in or distributions of the Company's capital stock for which the Exercise Price shall have been adjusted pursuant to subsection (a) of this Section 6 or cash dividends or cash distributions payable out of consolidated current or retained earnings as shown on the books of the Company and paid in the ordinary course of business); or (C) the Company shall authorize any capital reorganization or reclassification of the Common Stock (other than a subdivision or combination of the outstanding Common Stock and other than a change in par value of the Common Stock) or of any consolidation or merger to which the Company is a party and for which approval of any stockholders of the Company is required (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or change of the Common Stock outstanding), or of the conveyance or transfer of the properties and assets of the Company as an entirety or substantially as an entirety; or (D) the Company is the subject of a voluntary or involuntary dissolution, liquidation or winding-up procedure; or (E) the Company proposes to take any action (other than actions of the character described in subsection (a) of this Section 6) that would require an adjustment of the Exercise Price pursuant to this Section 6; the Company shall cause to be mailed by first-class mail to Holder, at least twenty (20) days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date as of which the holders of Common Stock of record to be entitled to receive any such rights, warrants or distributions are to be determined, or (y) the date on which any such consolidation, merger, conveyance, transfer, dissolution, liquidation or winding-up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property, if any, deliverable upon such reorganization, reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation or winding- up. (f) No Adjustment Upon Exercise of Warrant. No adjustments shall be made under any Section herein in connection with the issuance of Warrant Shares after exercise of this Warrant. Section 7. OFFICERS' CERTIFICATE. Whenever the Exercise Price shall be adjusted as required by the provisions of Section 6, the Company shall forthwith file in the custody of its Secretary or an Assistant Secretary at its principal office and officers' certificate showing the adjusted Exercise Price determined as herein provided, setting forth in reasonable detail the facts requiring such adjustment and the manner of computing such adjustment. Each such officers' certificate shall be signed by the chairperson, president or chief financial officer of the Company and by the secretary or any assistant secretary of the Company. Each such officers' certificate shall be made available at all reasonable times for inspection by Holder. Section 8. RECLASSIFICATION, REORGANIZATION, CONSOLIDATION OR MERGER. In the event of any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the Company (other than a subdivision or combination of the outstanding Common Stock and other than a change in the par value of the Common Stock) or in the event of any consolidation or merger of the Company with or into another corporation (other than a merger in which the Company is the continuing corporation and that does not result in any reclassification, capital reorganization or other change of outstanding shares of Common Stock of the class issuable upon exercise of this Warrant) or in the event of any sale, lease, transfer or conveyance to another corporation of the property and assets of the Company as an entirety or substantially as an entirety, the Company shall, as a condition precedent to such transaction, cause effective provisions to be made so that Holder shall have the right thereafter, by exercising this Warrant, to purchase the kind and amount of shares of stock and other securities and property (including cash) receivable upon such reclassification, capital reorganization and other change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common stock that might have been received upon exercise of this Warrant immediately prior to such reclassification, capital reorganization, change, consolidation, merger, sale or conveyance. Any such provisions shall include provisions for adjustments in respect of such shares of stock and other securities and property that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Warrant. The foregoing provisions of this Section 8 shall similarly apply to successive reclassifications, capital reorganizations and changes of shares of Common Stock and to successive consolidations, mergers, sales or conveyances. In the event that in connection with any such capital reorganization, or reclassification, consolidation, merger, sale or conveyance, additional shares of Common Stock shall be issued in exchange, conversion, substitution or payment, in whole or in part, for, or of, a security of the Company other than Common Stock, any such issue shall be treated as an issue of Common Stock covered by the provisions of subsection (a) of Section 6. Section 9. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. This Warrant may not be exercised and neither this Warrant nor any of the Warrant Shares, nor any interest in either, may be offered, sold, assigned, pledged, hypothecated, encumbered or in any other manner transferred or disposed of, in whole or in part, except in compliance with applicable United States federal and state securities or blue sky laws and the terms and conditions hereof. Each Warrant shall bear a legend in substantially the same form as the legend set forth on the first page of this Warrant. Each certificate for Warrant Shares issued upon exercise of this Warrant, unless at the time of exercise such Warrant Shares are acquired pursuant to a registration statement that has been declared effective under the Act and applicable blue sky laws, shall bear a legend substantially in the following form: THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. Any certificate for any Warrant Shares issued at any time in exchange or substitution for any certificate for any Warrant Shares bearing such legend (except a new certificate for any Warrant Shares issued after the acquisition of such Warrant Shares pursuant to a registration statement that has been declared effective under the Act) shall also bear such legend unless, in the opinion of counsel for the Company, the Warrant Shares represented thereby need no longer be subject to the restriction contained herein. The provision of this Section 9 shall be binding upon all subsequent holders of certificates for Warrant Shares bearing the above legend and all subsequent holders of this Warrant, if any. Section 10. MODIFICATION AND WAIVER. Neither this Warrant nor any term hereof may be changed, waived, discharged or terminated other than by an instrument in writing signed by the Company and by Holder. Section 11. NOTICES. All notices, requests, consents and other communications hereunder shall be in writing, shall be sent by confirmed facsimile or mailed by first- class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid, and shall be deemed given when so sent and addressed as follows: (i) if to the Company, to: Biocircuits Corporation 1324 Chesapeake Terrace Sunnyvale, California 94089 Attention: Donald B. Hawthorne Chief Financial Officer Facsimile No.: (408) 752-8790 with a copy so mailed to: Cooley Godward LLP Five Palo Alto Square Palo Alto, California 94306-2155 Attention: Deborah A. Marshall, Esq. Facsimile No.: (415) 857-0663 or to such other person at such other place as the Company shall designate to Purchaser in writing; and (ii) if to Purchaser, to: Beckman Instruments, Inc. 2500 Harbor Boulevard Fullerton, California 92834 Attention: Treasurer Facsimile No.: (714) 773-8111 with a copy so mailed to the General Counsel of Beckman Instruments, Inc. at the above address or at such other address or addresses as may have been furnished to the Company in writing. Section 12. DESCRIPTIVE HEADINGS AND GOVERNING LAW. The description headings of the several sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. This Warrant shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of California, without regard to its conflicts of laws principles. IN WITNESS WHEREOF, the Company has duly caused this Warrant to be signed by its duly authorized officer and to be dated as of December 13, 1996. BIOCIRCUITS CORPORATION By: /s/ John Kaiser John Kaiser Chief Executive Officer PURCHASE FORM Dated____________, 199__ The undersigned hereby irrevocably elects to exercise the within Warrant, No. 199_-___, to purchase _______ shares of Common Stock and hereby makes payment of $______________ in payment of the exercise price thereof. BECKMAN INSTRUMENTS, INC. By:__________________________ Louis T. Rosso Chief Executive Officer ASSIGNMENT FORM Dated____________, 199_ FOR VALUE RECEIVED, Beckman Instruments, Inc. hereby sells, assigns and transfers unto __________________________ ________________________________________ (the "Assignee"), (please type or print in block letters) ____________________________________________________________ (insert address) its right to purchase up to _________ shares of Common Stock represented by this Warrant, No. 199__-____, and does hereby irrevocably constitute and appoint _________________________ attorney, to transfer the same on the books of the Company, with full power of substitution in the premises. BECKMAN INSTRUMENTS, INC. By:__________________________ Louis T. Rosso Chief Executive Officer EX-5 3 Exhibit 5 BECKMAN INSTRUMENTS, INC. 2500 Harbor Boulevard, Box 3100 Fullerton, CA 92834-3100 CONFIDENTIAL LETTER OF UNDERSTANDING Via Overnight Delivery November 26, 1996 Mr. Donald B. Hawthorne Vice President and CFO Biocircuits Corporation 1324 Chesapeake Terrace Sunnyvale, CA 94089 RE: AMENDMENTS TO AGREEMENTS Dear Don: In October, 1996 Biocircuits Corporation completed a round of equity financing in excess of $3,250,000 (the "October Equity Financing"). This event satisfied a condition precedent set forth in Section 8 of Biocircuits' Convertible Secured Promissory Note (the "Note") held by Beckman dated August 15, 1995 which gave Beckman the right to convert the Note to Biocircuits' stock and warrants. In consideration for Beckman waiving that right, Biocircuits agreed to make certain changes in the Note and the related Investment Rights Agreement between the parties dated August 15, 1995 ("Rights Agreement"). These changes are set forth below. Note - ---- 1. With respect to the October Equity Financing only, Beckman waives its rights to convert the Note granted by Section 8 of the Note. 2. The December 31, 1996 date in Section 9 of the Note is changed to November 15, 1996. 3. In any 30 day period after the conversion by Beckman of the Note into Biocircuits' equity, Beckman covenants not to sell more than one-twelfth (the "Allotment Shares") of the total number of shares issued by Biocircuits to Beckman upon such conversion. If, however, in any subsequent 30 day period, Beckman fails to sell any portion of the Allotment Shares from the prior 30 day period, then Beckman may sell up to Mr. Donald B. Hawthorne November 26, 1996 Page 2 one-sixth of the total number of shares issued to Beckman in such subsequent 30 day period. In no event, however, may Beckman sell more than one-sixth of the shares issued to it by Biocircuits in any 30 day period. Rights Agreement - ---------------- 1. Clauses (ii), (iv) and (v) of Section 2.2.2 are deleted. 2. Clause (iii) of Section 2.2.2 is amended to read in its entirety as follows: "(iii) (x) for the period prior to and including December 15, 1996, if the Company shall furnish to the Holders a certificate signed by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, the requested filing of a Form S-3 at such time would have a material adverse effect on the Company and its stockholders; provided, however, that the Company will not initiate, take or support any action that would, in the good faith judgment of the Board of Directors, cause such material adverse effect to occur, or (y) for the period after December 15, 1996, if the Company shall furnish to the Holders a certificate signed by the Chairman of the Board of Directors of the Company stating that in the good faith judgment of the Board of Directors of the Company, the requested filing of a Form S-3 at such time would have a material adverse effect on the Company; provided, however, that if either of the events specified in this clause (iii)(x) or (y) shall occur, then in such event, the Company shall have the right to defer the filing of the Form S-3 registration statement for a period of not more than ninety (90) days after receipt of the request of the initiating Holders under this Section 2.2; provided, further, that such right to delay a request shall be exercised by the Company not more than twice in any one-year period, and in any event not consecutively with respect to any one request. 3. Registrable Securities includes Common Stock issued upon conversion of the Note, subject to the terms and conditions of Section 2.2 of the Rights Agreement, including the revisions of Section 2.2.2 set forth above. Mr. Donald B. Hawthorne November 26, 1996 Page 3 All other terms and conditions of the Agreements between our companies remain unchanged. The existing Agreements provide for registration rights for Beckman's shares. Please sign both copies of this Confidential Letter of Understanding below where indicated for your signature and return one originally-executed copy to me at your earliest convenience. Your signature will indicate your acceptance of the terms contained herein. Sincerely, /s/ Paul Glyer Paul Glyer Treasurer /dd I agree to the terms contained in this Confidential Letter of Understanding. Biocircuits Corporation By: /s/ Donald B. Hawthorne Name: Donald B. Hawthorne Title: CFO Date: 11/29/96 -----END PRIVACY-ENHANCED MESSAGE-----