UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 2)
Under the Securities Exchange Act of 1934
SCHICK TECHNOLOGIES, INC.
(Name of Issuer)
COMMON STOCK $0.01 PAR VALUE
(Title of Class of Securities)
806683108
(CUSIP Number)
LISA SCHWARTZ, ESQ.
GREYSTONE & CO., INC.
152 WEST 57TH STREET
NEW YORK, NY 10019
(212) 649-9700
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
May 12, 2005
September 22, 2005
September 28, 2005
December 21, 2005
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement of Schedule 13G to report
the acquisition which is the subject of the Schedule 13D, and is filing this
schedule because of Rule13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the Schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act,
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP NO. 806683108 SCHEDULE 13D PAGE 2 OF 7 PAGES
1 NAME OF REPORTING PERSON: Greystone Funding Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (voluntary):
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(see instructions) (b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS (see instructions)
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
Virginia
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,000,000 Shares
BENEFICIALLY
OWNED BY -----------------------------------
EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON
WITH -----------------------------------
9 SOLE DISPOSITIVE POWER
4,000,000 Shares
-----------------------------------
10 SHARED DISPOSITIVE POWER
0
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,000,000 Shares
--------------------------------------------------------------------------------
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)
27.94%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (see instructions)
CO
--------------------------------------------------------------------------------
CUSIP NO. 806683108 SCHEDULE 13D PAGE 3 OF 7 PAGES
1 NAME OF REPORTING PERSON: Stephen Rosenberg
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (voluntary):
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X]
(see instructions) (b) [ ]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS (see instructions)
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
Virginia
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY
OWNED BY -----------------------------------
EACH 8 SHARED VOTING POWER
REPORTING 4,000,000 Shares
PERSON
WITH -----------------------------------
9 SOLE DISPOSITIVE POWER
0
-----------------------------------
10 SHARED DISPOSITIVE POWER
4,000,000 Shares
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,000,000 Shares
--------------------------------------------------------------------------------
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)
27.94%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (see instructions)
IN
CUSIP NO. 806683108 SCHEDULE 13D PAGE 4 OF 7 PAGES
STATEMENT FOR SCHEDULE 13D
This Amendment No. 2 to Schedule 13D is being filed on behalf of
Greystone Funding Corporation, a Virginia corporation ("Greystone") and Stephen
Rosenberg with respect to the common stock, par value $0.01 per share ("Common
Stock"), of Schick Technologies, Inc., a Delaware corporation ("Schick"). This
Amendment No. 2 amends the initial statement on Schedule 13D originally filed
with the Securities and Exchange Commission on December 1, 2000 ("Initial
Statement") as amended by the Amendment No. 1 thereto filed April 9, 2004 by
Greystone. The Initial Statement is hereby amended and supplemented as follows:
Item 1. Security and Issuer
This statement relates to the disposition of common stock, par value
$0.01 per share of Schick. The principal offices of Schick are located at 31-00
47th Avenue, Long Island City, New York 11101.
Item 2. Identity and Background
(a) This statement is filed by Greystone and Stephen Rosenberg
(collectively, the "Reporting Persons").
(b) The business address of Mr. Rosenberg is 152 West 57th Street,
60th Floor, New York, NY 10019, and the business address of
Greystone is 419 Belle Air Lane, Warrenton, VA 20186.
(c) Mr. Rosenberg's present principal occupation involves, among
other things, investing in real estate individually and
through investment vehicles and originating and securitizing
loans. Greystone Funding Corporation invests primarily in real
estate related transactions.
(d) During the past five years, neither of the Reporting Persons
has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons 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 securities
laws or finding any violation with respect to such laws.
(f) Mr. Rosenberg is a citizen of the United States of America.
Greystone is a corporation organized under the laws of the
Commonwealth of Virginia.
Item 3. Source and Amount of Funds or Other Consideration
Effective as of December 21, 2005, Greystone assigned 527,716 shares of
Common Stock to The Murray & Sydell Rosenberg Foundation, Inc (the
"Foundation"). The Foundation is a tax-
CUSIP NO. 806683108 SCHEDULE 13D PAGE 5 OF 7 PAGES
exempt corporation pursuant to Section 501(c) (3) of the Internal Revenue Code.
The assignment of Common Stock to the Foundation was a gift, and no
consideration was given in exchange for such shares.
Item 4. Purpose of the Transaction
Effective as of September 22, 2005, Greystone entered into a Voting
Agreement and Irrevocable Proxy (the "Voting Agreement"), by and between
Greystone and Sirona Holdings Luxco S.C.A. ("Luxco"). Under the Voting
Agreement, Greystone granted Luxco an irrevocable proxy to vote Greystone's
Common Stock. The purpose of entering into the Voting Agreement was to
facilitate the approval of the transactions contemplated by the Exchange
Agreement and Certificate Amendment, each as defined in the Voting Agreement,
and to induce Luxco to enter into the Exchange Agreement.
The purpose of the December 21, 2005 assignment of 527,716 shares of
Common Stock was to make a gift to a charitable foundation.
Item 5. Interest in Securities of the Issuer
(a) As of the date hereof, Greystone is the registered holder of
4,000,000 shares of Schick's Common Stock. Such shares of
common stock represent approximately 27.94% of Schick's Common
Stock outstanding.
Mr. Rosenberg may be deemed to own beneficially all Common
Stock owned by Greystone by virtue of his ownership of 100% of
the outstanding voting securities of Greystone.
(b) Mr. Rosenberg shares with Greystone the power to cast or
direct the casting of votes on 4,000,000 shares of Schick's
Common Stock and shares the power to dispose or direct the
disposition of such shares. Such shares of common stock
represent approximately 27.94% of Schick's Common Stock
outstanding.
(c) Except for the transactions referred to in Items 3 and 4
above, there have not been any transactions with respect to
Schick's Common Stock within 60 days prior to the date of this
Schedule 13D by either of the Reporting Persons referred to
herein.
(d) No other person is known to have the right to receive or the
power to direct the receipt of dividends from or the proceeds
from the sale of such shares.
(e) Not applicable.
CUSIP NO. 806683108 SCHEDULE 13D PAGE 6 OF 7 PAGES
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer
Effective as of May 12, 2005, Greystone entered in to a Financing
Agreement by and among Greystone, Greystone Loan Funding, L.L.C. and Bank of
America N.A. (the "Financing Agreement"), whereby Greystone was extended a line
of credit in the principal amount of $40,000,000 to finance certain of its
business lines. Greystone pledged the Common Stock as collateral for this line
of credit. The Financing Agreement contained standard default provisions.
Effective as of September 28, 2005, the Financing Agreement was amended and
restated in its entirety by the parties thereto to provide for an additional
$25,000,000 line of credit to Greystone which was secured by the Common Stock.
Under the Voting Agreement, Greystone granted Luxco an irrevocable
proxy, during the term of the Voting Agreement, to vote the Common Stock in
favor of the adoption of and in furtherance of the transactions contemplated by
the Exchange Agreement and Certificate Amendment, each as defined in the Voting
Agreement.
Effective as of December 21, 2005, Luxco consented to Greystone's
assignment of 527,716 shares of Common Stock to the Foundation, and the
Foundation agreed to be bound by the terms of the Voting Agreement.
As of the date hereof, to the best knowledge of the Reporting Persons,
there are no other contracts, arrangements, understanding or relationships
(legal or otherwise) among the Reporting Persons or between the Reporting
Persons and any other person with respect to any securities of Schick, except as
disclosed in this Item 6 or in Items 3 and 4.
Item 7. Material to be Filed as Exhibits
Exhibit D Joint Filing Agreement, as of the date hereof, by and between
Stephen Rosenberg and Greystone Funding Corporation.
Exhibit E Voting Agreement and Irrevocable Proxy, dated as of September
22, 2005, by and between the Greystone Funding Corporation and
Sirona Holdings Luxco S.C.A.
CUSIP NO. 806683108 SCHEDULE 13D PAGE 7 OF 7 PAGES
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true and complete.
Dated: April 10, 2006
/s/ Stephen Rosenberg
----------------------------
STEPHEN ROSENBERG
GREYSTONE FUNDING CORPORATION
By: /s/ Stephen Rosenberg
----------------------------
Name: Stephen Rosenberg
Title: Director
EXHIBIT D
Joint Filing Agreement
In accordance with Rule 13d-1(k) under the Securities Exchange Act of
1934, as amended, the persons named below agree to the joint filing on behalf of
each of them a statement on Schedule 13D (including amendments thereto) with
respect to the Common Stock of Schick Technologies, Inc. and further agree that
this Joint Filing Agreement be included as an Exhibit to such joint filings. In
evidence thereof, the undersigned, being duly authorized, hereby execute this
Agreement this 10th day of April, 2006.
/s/ Stephen Rosenberg
--------------------------------
Stephen Rosenberg
Greystone Funding Corporation
By: /s/ Stephen Rosenberg
-----------------------------
Name: Stephen Rosenberg
Title: President
EXHIBIT E
VOTING AGREEMENT AND IRREVOCABLE PROXY
THIS VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of September 22,
2005 (this "Agreement"), is made by and between Sirona Holdings Luxco S.C.A., A
SOCIETE EN COMMANDITE PAR ACTIONS, organized under the laws of the Grand Duchy
of Luxembourg ("LUXCO") and Greystone Funding Corporation, a Virginia
corporation (the "Stockholder"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Exchange
Agreement (as the same may hereafter be amended from time-to-time, the "EXCHANGE
Agreement") dated as of the date hereof by and among Schick Technologies, Inc.,
a Delaware corporation ("SCHICK"), Luxco and Blitz 05-118 GmbH, a corporation
established under the laws of the Federal Republic of Germany and to be renamed
Sirona Holding GmbH ("SIRONA").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, concurrently with the execution and delivery of this
Agreement, Schick, Luxco and Sirona have entered into the Exchange Agreement
pursuant to which Luxco will transfer the Sirona Shares and the Sirona Note to
Schick and Schick will transfer the Schick Shares to Luxco (the "EXCHANGE
TRANSACTIONS"), on the terms and conditions set forth therein;
WHEREAS, in connection with the Exchange Transactions, Schick will seek
to amend its certificate of incorporation to increase the number of authorized
shares of Common Stock as set forth in the Certificate Amendment (the
"CERTIFICATE AMENDMENT", and together with the Exchange Transactions, the
"TRANSACTIONS");
WHEREAS, in furtherance of the Transactions, the parties hereto desire
that as soon as practicable after the execution and delivery of the Exchange
Agreement, Schick will deliver a Proxy Statement to all of the holders of
outstanding shares of Common Stock (including all of the Existing Shares (as
defined in SECTION 3 hereof));
WHEREAS, the Board of Directors of Schick has duly adopted resolutions
approving the Exchange Agreement, the Transactions and this Agreement and
recommending that Schick's stockholders adopt the Exchange Agreement and the
Certificate Amendment and approve the Transactions; and
WHEREAS, as a condition to the willingness of Luxco to enter into the
Exchange Agreement, Luxco has requested that certain stockholders of Schick
(including the Stockholder) enter into this Agreement, and in order to induce
Luxco to enter into the Exchange Agreement, the Stockholder has agreed to enter
into this Agreement solely in the Stockholder's capacity as a stockholder of
Schick.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations, warranties, covenants and agreements contained herein
and the execution and delivery by Schick and Luxco of the Exchange Agreement,
and intending to be legally bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "AFFILIATE" of any particular Person means any other Person
controlling, controlled by, or under common control with such
particular Person, where "control" means the possession,
directly or indirectly, of the power to direct the management
and policies of a Person whether through the ownership of
voting securities, contract, or otherwise; PROVIDED, however,
that solely for purposes of this Agreement, notwithstanding
anything to the contrary set forth in this Agreement, neither
Schick nor any of its Subsidiaries shall be deemed to be an
Affiliate of the Stockholder, nor shall the Stockholder be
deemed to be an Affiliate of Schick or its Subsidiaries.
(b) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" by a Person of
any securities includes ownership by any Person who, directly
or indirectly, though any contract, arrangement,
understanding, relationship or otherwise, has or shares (i)
voting power which includes the power to vote, or to direct
the voting of, such security; and/or (ii) investment power
which includes the power to dispose, or to direct the
disposition, of such security; and shall otherwise be
interpreted in accordance with the term "beneficial ownership"
as defined in Rule 13d-3 adopted by the Securities and
Exchange Commission under the Exchange Act; PROVIDED for
purposes of determining Beneficial Ownership, a Person shall
be deemed to be the Beneficial Owner of any securities which
may be acquired by such Person pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise (irrespective of whether the right to acquire such
securities is exercisable immediately or only after the
passage of time, the satisfaction of any conditions, the
occurrence of any event or any combination of the foregoing).
(c) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(d) "PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated
organization, any other business entity, or a governmental
entity (or any department, agency, or political subdivision
thereof).
(e) "SHARES" shall mean the Existing Shares together with any
shares of the capital stock of Schick acquired by the
Stockholder in any capacity after the date hereof and prior to
the termination of this Agreement whether upon the exercise of
options or by means of purchase, stock split, dividend,
distribution or otherwise.
2. VOTING AGREEMENT; IRREVOCABLE PROXY; NO SOLICITATION; ETC.
(a) VOTING AGREEMENT. Unless Luxco votes the Stockholder's Shares
directly pursuant to the proxy granted in SECTION 2(E) hereof,
the Stockholder shall at the Schick Stockholders Meeting and
any other meeting of the holders of Common Stock (including at
any adjournment(s) thereof), however called, or in connection
with any written consent of the holders of Common Stock,
appear at such meeting or otherwise cause all of the shares of
capital stock of Schick Beneficially Owned or owned of record
by the Stockholder (including the Shares) to be counted as
present at such meeting for purposes of establishing a quorum
and vote or consent (or cause to be voted or consented) such
shares (including the Shares), (i) in favor of the adoption of
the Exchange Agreement and the Certificate Amendment and in
favor of the transactions contemplated by the Exchange
Agreement and any actions required in furtherance thereof and
hereof; (ii) against any other merger, consolidation,
combination, sale of substantial assets, sale of capital
stock, sale of debt securities, reorganization,
recapitalization, tender offer, dissolution, liquidation or
winding up of or by Schick or any of its Subsidiaries or any
Competing Transaction with respect to Schick (other than the
Exchange Agreement and the transactions contemplated thereby);
and (iii) against any amendment of Schick's bylaws or
certificate of incorporation (other than the Certificate
Amendment) or other action or agreement that would impede,
frustrate, hinder, delay, prevent or nullify this Agreement,
the Exchange Agreement, the Certificate Amendment or the
transactions contemplated hereby or thereby or result in a
breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of Schick under
the Exchange Agreement.
(b) RESTRICTIONS ON TRANSFER; NO INCONSISTENT ARRANGEMENTS. The
Stockholder hereby covenants and agrees that, except as
contemplated by this Agreement and the Exchange Agreement and
except for sales or transfers (X) if the Stockholder is an
individual, to a member of such Stockholder's immediate family
(so long as such transferee agrees in advance in writing to be
bound by and perform the terms of this Agreement) or (Y) if
the Stockholder is an entity, (A) to an Affiliate of such
Stockholder (so long as such Affiliate agrees in advance in
writing to be bound by and perform the terms of this
Agreement) or (B) with the prior written consent of Luxco
(such consent to be withheld only in the event that Luxco
reasonably determines that such sale or transfer may be
related to or could reasonably be expected to facilitate or
support a Competing Transaction involving Schick or any of its
Subsidiaries), to a Person that is an entity that is qualified
as tax-exempt pursuant to Section 501(c)(3) of the Code (so
long as such Person agrees in advance in writing to be bound
by and perform the terms of this Agreement (including, without
limitation, SECTION 2(G) hereof)), provided that any sale or
transfer pursuant to this clause (B) shall only be made to one
Person, shall only be of Shares and shall be structured as a
gift to such Person for no material consideration, the
Stockholder shall not (i) except for the pledges and
encumbrances, if any, permitted by SCHEDULE 2(B)(i), sell,
transfer (with or without consideration), pledge or otherwise
encumber, assign or otherwise dispose of any of the
Stockholder's Shares or any option or other right to acquire
any shares of capital stock of Schick (an "OPTION"), (ii)
enter into any contract, agreement, option or other
arrangement or understanding with respect to the sale,
transfer (with or without consideration), pledge, assignment
or other disposition of the Stockholder's Shares or Options,
(iii) grant any proxy, power-of-attorney, option or other
authorization in or with respect to the Stockholder's Shares
or Options or (iv) deposit such Shares or Options into a
voting trust or enter into a voting agreement or arrangement
with respect to such Shares or Options. In addition to the
consent of Luxco, if any, required pursuant to the foregoing
clause (B), if applicable, prior to any sale or transfer
permitted by the foregoing clause (X) or (Y), the Stockholder
shall deliver written notice to Luxco and such notice shall
disclose in reasonable detail the identity of such permitted
transferee and shall deliver to Luxco the agreement of such
transferee contemplated by the prior sentence in form and
substance reasonably satisfactory to Luxco. Notwithstanding
anything to the contrary in this Agreement, the Stockholder
may exercise at any time any Options issued by Schick and
outstanding on the date hereof held by such Stockholder and
any shares received in connection with such exercise shall
constitute additional Shares subject to this Agreement.
(c) NO SOLICITATION. The Stockholder hereby agrees, solely in the
Stockholder's capacity as a stockholder of Schick, that the
Stockholder will not, nor shall it authorize or permit any of
its officers, directors and Affiliates and it will use its
commercially reasonable efforts to cause its agents, employees
and advisors not to, directly or indirectly, (i) solicit,
initiate or knowingly encourage (including, but not limited
to, by way of furnishing nonpublic information) any inquiries
or the making of any proposal or offer (including, without
limitation, any proposal or offer to Schick's stockholders)
that constitutes, or is reasonably expected to lead to, any
Competing Transaction relating to Schick or its Subsidiaries
(other than the Transactions), (ii) enter into or maintain or
continue discussions or negotiations with any Person (other
than Luxco or its Affiliates) in furtherance of such inquiries
or to obtain a Competing Transaction relating to Schick or its
Subsidiaries, (iii) agree to any Competing Transaction (other
than the Transactions) relating to Schick or its Subsidiaries
or (iv) endorse any Competing Transaction (other than the
Transactions) relating to Schick or its Subsidiaries. The
Stockholder shall promptly (within 24 hours) notify Luxco
after receipt by him or it (or any of his or its officers,
directors, employees, agents or advisors or other
representatives) of any Competing Transaction Proposal or any
request for nonpublic information or inquiry which he or it
reasonably believes could be expected to lead to a Competing
Transaction Proposal and shall provide to Luxco, in writing,
the terms and conditions of any such Competing Transaction
Proposal, or such request or inquiry and the identity of the
Person making the same.
(d) WAIVER OF APPRAISAL RIGHTS. The Stockholder hereby waives any
rights of appraisal or rights to dissent from the Exchange
Transactions, if any, that the Stockholder may have under
applicable law or otherwise.
(e) IRREVOCABLE PROXY. The Stockholder hereby grants an
irrevocable proxy during the term of this Agreement to Luxco,
and hereby constitutes and appoints Luxco, or any nominee of
Luxco, as its attorney-in-fact and proxy, with full power of
substitution, for and in its name, place and stead, to vote
(by written consent or otherwise) the Shares which the
Stockholder is entitled to vote at any meeting of the
stockholders of Schick (whether annual or special and whether
or not an adjourned or postponed meeting), on the matters and
in the manner specified in SECTION 2(A) of this Agreement.
THIS PROXY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. The
Stockholder hereby revokes all previous proxies granted with
respect to the Shares, and no subsequent proxy shall be given
(and if given or executed, shall not be effective) by the
Stockholder. All authority herein conferred or agreed to be
conferred shall survive any bankruptcy or dissolution of the
Stockholder and the subsequent holders of any Shares. Luxco
may terminate the foregoing proxy with respect to the
Stockholder at any time at its sole election by written notice
to the Stockholder.
(f) NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in Luxco any direct or indirect
ownership or incidence of ownership of or with respect to any
Shares. All ownership and economic benefits of and relating to
the Shares shall remain vested in and belong to the
Stockholder, and Luxco shall have no authority to manage,
direct, superintend, restrict, regulate, govern, or administer
any of the policies or operations of Schick or exercise any
power or authority to direct the Stockholder in the voting of
any of the Shares, except as otherwise provided herein.
(g) LIMITED HOLDBACK OF CERTAIN HOLDERS. In addition to the
restrictions set forth in SECTION 2(B), the Person that
acquires Shares from the Stockholder or its assignees or
transferees or their respective assignees or transferees, in
any case, in reliance on the transfer exception set forth in
clause (B) of SECTION 2(B) hereof (such Person, the
"CHARITABLE HOLDER"), shall be subject to and hereby agrees to
the following covenant: the Charitable Holder shall not effect
any public sale or distribution (including sales pursuant to
Rule 144 under the Securities Act of 1933, as amended) of
equity securities of Schick, or any securities convertible
into or exchangeable or exercisable for such securities, prior
to December 15, 2006, unless Luxco otherwise agrees in advance
and in writing.
3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholder
hereby represents and warrants to Luxco as follows:
(a) OWNERSHIP OF SHARES. The Stockholder is the record and
Beneficial Owner of 4,527,716 shares of Schick's Common Stock
(the "EXISTING SHARES"). On the date hereof, except as set
forth on SCHEDULE I to this Agreement, the Existing Shares
constitute all of the Shares owned of record or Beneficially
Owned by the Stockholder and the Stockholder does not own any
option, warrant or other right to acquire any shares of Common
Stock. Subject to the encumbrance set forth on SCHEDULE
2(B)(I), if any, the Stockholder has sole voting power and
sole power to issue instructions with respect to the matters
set forth herein, sole power of disposition, sole power of
conversion, sole power to demand appraisal rights and sole
power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the
Stockholder's Existing Shares with no limitations,
qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) ORGANIZATION; POWER; BINDING AGREEMENT. If the Stockholder is
an entity, the Stockholder is a legal entity, duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization and has full organizational power
and authority to enter into and perform all of its obligations
under this Agreement. If the Stockholder is an individual,
such Stockholder has the legal capacity to enter into and
perform all of his or her obligations under this Agreement.
The execution, delivery and performance of this Agreement by
the Stockholder has been duly and validly authorized by all
necessary action on the part of the Stockholder and no other
proceedings on the part of the Stockholder is necessary to
authorize this Agreement or to consummate the transactions
contemplated hereby and will not violate any other agreement
to which the Stockholder is a party including, without
limitation, any voting agreement, proxy agreement, pledge
agreement, shareholders agreement or voting trust or, if the
Stockholder is an entity, the Stockholder's organizational
documents. This Agreement has been duly and validly executed
and delivered by the Stockholder and, assuming the due
authorization, execution and delivery by or on behalf of
Luxco, constitutes a valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors,
and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies. There is no
beneficiary or holder of a voting trust certificate or other
interest of any trust of which the Stockholder is a trustee
whose consent is required for the execution and delivery of
this Agreement or the consummation by the Stockholder of the
transactions contemplated hereby.
(c) NO CONFLICTS. Assuming the expiration or termination of the
waiting period under the Hart-Scott Rodino Act (and the
satisfaction or obtaining of any requirements and any required
consents under other anti-competition laws), the filing of
proxy materials with the SEC and compliance with the Exchange
Act, the execution and delivery of this Agreement by the
Stockholder, and performance of this Agreement by the
Stockholder will not (i) if the Stockholder is an entity,
contravene or conflict with or constitute a violation of the
organizational documents or any resolution adopted by its
stockholders, members, partners, board of directors (or
similar governing body) or any committee thereof, (ii)
contravene or conflict with or constitute a violation of any
Legal Requirement applicable to the Stockholder, (iii) result
in any material breach of or constitute a material default (or
an event that with notice or lapse of time or both would
become a material default) under, or impair the Stockholder's
rights or alter the rights or obligations of any third Person
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of
a Lien on any of the assets of the Stockholder pursuant to any
Contract to which the Stockholder is a party, or (iv)
contravene, conflict with or result in a violation of any of
the terms or requirements of, or give any Governmental Entity
the right to revoke, withdraw, suspend, cancel, terminate or
modify any permit applicable to the Stockholder, except where
any of the foregoing in clauses (i), (ii), (iii) or (iv) would
not, individually or in the aggregate, reasonably be expected
to have, in any material respect, an adverse effect on the
execution, delivery or performance by the Stockholder of this
Agreement.
4. RELIANCE BY LUXCO. The Stockholder understands and acknowledges that
Luxco is entering into the Exchange Agreement in reliance upon the
Stockholder's execution, delivery and performance of this Agreement and
the completeness and accuracy of the representations and warranties
contained herein.
5. FURTHER ASSURANCES. From time-to-time, at Luxco's request and without
further consideration, the Stockholder shall execute and deliver such
additional documents and take all such further lawful action as Luxco
may reasonably request for the purpose of carrying out the transactions
contemplated by this Agreement.
6. REPRESENTATIONS AND WARRANTIES OF LUXCO. Luxco hereby represents and
warrants to the Stockholder as follows:
(a) ORGANIZATION; POWER; BINDING AGREEMENT. Luxco is a societe en
commandite par actions, duly organized and validly existing
under the laws of the Grand Duchy of Luxembourg, and has full
organizational power and authority to enter into and perform
all of its obligations under this Agreement. The execution,
delivery and performance of this Agreement by Luxco has been
duly and validly authorized by all necessary action on the
part of Luxco and no other proceedings on the part of Luxco
are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Luxco, and assuming the
due authorization, execution and delivery by or on behalf of
the Stockholder, constitutes a valid and binding agreement of
Luxco, enforceable against Luxco in accordance with its terms,
subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and (ii)
rules of law governing specific performance, injunctive relief
and other equitable remedies.
(b) NO CONFLICTS. Assuming the expiration or termination of the
waiting period under the Hart-Scott Rodino Act (and the
satisfaction or obtaining of any requirements and any required
consents under other anti-competition laws), the filing of
proxy materials with the SEC and compliance with the Exchange
Act, the execution and delivery of this Agreement by Luxco,
and performance of this Agreement by Luxco will not (i)
contravene or conflict with or constitute a violation of the
organizational documents or any resolution adopted by its
stockholders, members, partners, board of directors (or
similar governing body) or any committee thereof, (ii)
contravene or conflict with or constitute a violation of any
Legal Requirement applicable to Luxco, (iii) result in any
material breach of or constitute a material default (or an
event that with notice or lapse of time or both would become a
material default) under, or impair Luxco's rights or alter the
rights or obligations of any third Person under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a Lien on any of
the assets of Luxco pursuant to any Contract to which Luxco is
a party, or (iv) contravene, conflict with or result in a
violation of any of the terms or requirements of, or give any
Governmental Entity the right to revoke, withdraw, suspend,
cancel, terminate or modify any permit applicable to Luxco,
except where any of the foregoing in clauses (i), (ii), (iii)
or (iv) would not, individually or in the aggregate,
reasonably be expected to have, in any material respect, an
adverse effect on the execution, delivery or performance by
Luxco of this Agreement.
7. TERMINATION.
(a) TERMINATION. The covenants and agreements in this Agreement
shall terminate upon the earlier to occur of (i) the
termination of the Exchange Agreement in accordance with its
terms and (ii) the Closing. Notwithstanding the foregoing, the
agreements in SECTION 1, SECTION 7, SECTION 8(C) and SECTION 9
hereof shall continue indefinitely and survive any termination
pursuant to this SECTION 7. Notwithstanding the foregoing, the
agreements in SECTION 2(G) hereof shall continue and survive
any termination pursuant to clause (ii) of the first sentence
of this Section 7(a) until December 15, 2006.
(b) EFFECT OF TERMINATION. In the event of a termination of this
Agreement as provided in SECTION 7(A) hereof, this Agreement
and the proxy granted in SECTION 2(E), hereof shall forthwith
become void and there shall be no liability or obligation on
the part of Luxco or the Stockholder or their respective
officers, directors or partners hereunder thereafter, except
as to those Sections referenced in the last two sentences of
SECTION 7(A) above for which any liability or obligation shall
survive as provided therein; PROVIDED, however, that nothing
herein shall relieve any party for liability for any breach
hereof prior to any such termination.
8. OTHER AGREEMENTS.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES; EXCLUSIVE
REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein or made in writing by any party in
connection herewith shall not survive the termination of this
Agreement; provided that no such termination shall relieve any
party hereto from any liability from a breach of this
Agreement prior to the date of termination. The Stockholder
agrees that, except for the representations and warranties
contained in this Agreement, neither Luxco nor any of its
Affiliates or representatives makes any other representations
or warranties, and Luxco hereby disclaims any other
representations and warranties made by itself or any of its
representatives to the Stockholder, with respect to the
execution and delivery of this Agreement, the documents and
the instruments referred to herein, or the transactions
contemplated hereby or thereby, notwithstanding the delivery
or disclosure to the Stockholder or the Stockholder's
representatives of any documentation or other information with
respect to any one or more of the foregoing.
(b) PUBLIC ANNOUNCEMENTS. The Stockholder agrees that the
Stockholder will not issue any press release or otherwise make
any public statement with respect to this Agreement, the
Exchange Agreement or the transactions contemplated hereby or
thereby without the prior written consent of Luxco; PROVIDED,
however, that such disclosure can be made without obtaining
such prior consent if such party determines based upon the
advice from its legal counsel that such disclosure is required
pursuant to applicable law or regulations of national
securities exchanges or Nasdaq and the party making such
disclosure has first used its commercially reasonable efforts
to consult with the other parties about the form and substance
of such disclosure prior to making such disclosure.
(c) CONFIDENTIALITY. The Stockholder will maintain the
confidentiality of any information relating to the business,
operations, financial structure, financial position or
financial results, customers, suppliers, contracts, employees
and affairs of Schick or its Subsidiaries that shall not be
generally known to the public or to other participants in
Schick's industry ("SCHICK CONFIDENTIAL INFORMATION");
PROVIDED HOWEVER, that such restriction shall not apply as to
particular portions of Schick Confidential Information (i) if,
and only to the extent, such portions become generally
available to the public other than as a result of a disclosure
by the Stockholder in violation of this SECTION 8(C) or (ii)
if the Stockholder determines based upon the advice from its
legal counsel that disclosure by the Stockholder on its own
behalf is required pursuant to applicable law or regulations
of national securities exchanges or Nasdaq and has used its or
his commercially reasonable efforts to consult with Luxco
about the form and substance of such disclosure prior to
making such disclosure, in which event it may disclose to the
extent, but only to the extent, so required under such
applicable law or regulations. In addition, the restrictions
in the prior sentence shall not apply as to particular
portions of Schick Confidential Information which the
Stockholder reasonably believes it needs to disclose to a
court, tribunal or arbitration panel in an action to enforce
or defend its rights under and with respect to this Agreement.
In the event that the Stockholder is requested or becomes
compelled (by oral questions, interrogatories, requests for
information or documents, subpoena, investigative demand or
similar legal or regulatory process) to disclose any Schick
Confidential Information, the Stockholder will promptly
provide Luxco with written notice so Luxco or Schick may seek
a protective order or other appropriate remedy and the
Stockholder will fully cooperate with Luxco's or Schick's
efforts to obtain the same. If, in the absence of a protective
order or other remedy or waiver, the Stockholder, after
consultation with Luxco, is compelled to disclose such Schick
Confidential Information to any tribunal or regulatory
authority or else, in the reasonable judgment of the
Stockholder's counsel, stands liable for contempt or will
suffer other censure or penalty, the Stockholder will furnish
only that portion of Schick Confidential Information which is
required to be furnished.
9. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter
hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties
with respect to the subject matter hereof.
(b) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Shares and shall be binding upon
any person or entity to which legal or Beneficial Ownership of
such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, the Stockholder's
heirs, guardians, administrators or successors.
(c) ASSIGNMENT. This Agreement shall not be assigned by operation
of law or otherwise without the prior written consent of the
other parties; provided that Luxco may assign, in its sole
discretion, its rights and obligations hereunder to any direct
or indirect wholly owned Subsidiary of it, but no such
assignment shall relieve it of its obligations hereunder if
such assignee does not perform such obligations.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or
terminated, except upon the execution and delivery of a
written agreement executed by Luxco and the Stockholder.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be
given (and shall be deemed to have been duly received if
given) by hand delivery or telecopy (with a confirmation copy
sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as Federal
Express, providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the
following addresses:
If to the Stockholder:
---------------------
Greystone Funding Corporation, a Virginia corporation
Carnegie Hall Tower
152 West 57th Street, 60th Floor
New York, New York 10019
Attention:
Facsimile:
and
---
Schick Technologies, Inc.
30-0047th Avenue
Long Island City, NY 11101
Attention: Jeffrey T. Slovin
Facsimile: (718) 729-3469
and
---
Dorsey & Whitney LLP
250 Park Avenue
New York, NY 10177
Attention: Barry Wade
Facsimile: (212) 953-7201
If to LUXCO:
-----------
Sirona Holdings Luxco S.C.A.
8-10, rue Mathias Hardt
L-1717 Luxembourg
Attention: Catherine Koch
Facsimile: +352 480-631
and
---
Sirona Holdings Luxco S.C.A.
c/o Madison Dearborn Partners
Three First National Plaza, Suite 3800
Chicago, Illinois 60602
Attention: Timothy P. Sullivan
Facsimile: (312) 895-1001
with copies to:
---------------
Kirkland & Ellis LLP
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Sanford E. Perl, P.C.
Facsimile: (312) 861-2200
and
---
Piliero Goldstein Kogan & Miller, LLP
10 East 53rd Street
New York, New York 10022
Attention: Edward J. Goldstein
Facsimile: (212) 478-8504
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but
if any provision or portion of any provision of this Agreement
is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any
other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal
or unenforceable provision or portion of any provision had
never been contained herein.
(g) SPECIFIC PERFORMANCE. The Stockholder recognizes and
acknowledges that a breach by the Stockholder of any covenants
or agreements contained in this Agreement will cause Luxco to
sustain damages for which it would not have an adequate remedy
at law for money damages, and therefore in the event of any
such breach or threatened breach Luxco shall be entitled to
the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at
law or in equity, without the necessity of posting of any bond
or similar undertaking.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof
at law or in equity shall be cumulative and not alternative,
and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other, such
rights, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or
to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not
constitute a waiver by such party of its right to exercise any
such or other right, power or remedy or to demand such
compliance.
(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended
to be for the benefit of, and shall not be enforceable by, any
person or entity who or which is not a party hereto.
(k) GOVERNING LAW; JURISDICTION. This Agreement shall be governed
and construed in accordance with the laws of the State of
Delaware, without regard to the laws that might be applicable
under conflicts of laws principles. The Stockholder and Luxco
irrevocably agree that any legal action or proceeding with
respect to this Agreement or for recognition and enforcement
of any judgment in respect hereof brought by the other party
hereto or its successors or assigns may be brought and
determined in the Chancery or other Courts of the State of
Delaware, and the Stockholder and Luxco hereby irrevocably
submits with regard to any such action or proceeding for
itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the
aforesaid courts. The Stockholder and Luxco hereby irrevocably
waive, and agree not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or
proceeding with respect to this Agreement, (A) any claim that
it is not personally subject to the jurisdiction of the
above-named courts for any reason other than the failure to
lawfully serve process, (B) that it or its property is exempt
or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in
aid of execution of judgment, execution of judgment or
otherwise), and (C) to the fullest extent permitted by
applicable law, that (i) the suit, action or proceeding in any
such court is brought in an inconvenient forum, (ii) the venue
of such suit, action or proceeding is improper and (iii) this
Agreement, or the subject matter hereof, may not be enforced
in or by such courts.
(l) DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or
interpretation of this Agreement.
(m) COUNTERPARTS. This Agreement may be executed and delivered in
counterparts (including delivery by facsimile or other
electronic means), each of which shall be deemed to be an
original, but all of which, taken together, shall constitute
one and the same Agreement.
(n) EXPENSES. Each party shall pay its own costs and expenses,
including without limitation, the fees and expenses of their
respective counsel and financial advisors.
(o) INTERPRETATION. When a reference is made in this Agreement to
Sections, Exhibits or Schedules, such reference shall be to a
Section of or Exhibit or Schedule to this Agreement unless
otherwise indicated. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." The
parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any
federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated
thereunder, unless the content requires otherwise. Words
denoting the singular tense or person shall include the plural
and vice versa and references to the masculine gender shall,
where the context permits, include the feminine and/or neuter
genders and vice versa.
(p) NO RESTRICTIONS ON ACTIONS AS DIRECTORS. Notwithstanding
anything to the contrary in this Agreement, in the case of any
Stockholder who is a director or executive officer of Schick,
the agreements of such Stockholder contained in this Agreement
shall not govern, limit or restrict such Stockholder's ability
to exercise his or her fiduciary duties as a director or
executive officer to the stockholders of Schick under
applicable law in his or her capacity as a director or
executive officer of Schick.
* * * * *
IN WITNESS WHEREOF, Luxco and the Stockholder have caused this Voting
Agreement and Irrevocable Proxy to be duly executed as of the day and year first
above written.
SIRONA HOLDINGS S.A. ITS: MANAGER
By: Sirona Holdings Luxco S.C.A.
Its: Manager
By:
------------------------
Name:
Its:
By:
------------------------
Name:
Its:
GREYSTONE FUNDING CORPORATION
By:
------------------------
Name:
Its:
SCHEDULE I
----------
OPTIONS, ETC.
-------------
None.
SCHEDULE 2(B)(I)
----------------
PERMITTED ENCUMBRANCES
----------------------
The Stockholder shall be permitted to pledge (but not sell, assign or transfer)
the Shares to a bank lender as collateral security for loans to the Stockholder
not to exceed $65 million in the aggregate other than in connection with or
relating to any Competing Transaction (as defined in the Exchange Agreement)
involving Schick or any of its Subsidiaries.