Exhibit 4
SHARE PURCHASE AGREEMENT (this "Agreement"), dated as
of September 18, 1997, between Cape Xxx Investors, L.L.C., a
Delaware limited liability company ("Seller"), and
___________________ ("Purchaser").
WHEREAS, pursuant to that certain Stock Purchase
Agreement by and between NutraMax Products, Inc. ("NutraMax") and
Seller, dated as of August 12, 1997 and amended September 9, 1997
(the "Stock Purchase Agreement"), Seller purchased from NutraMax
846,154 shares of Common Stock, par value $0.001 per share, of
NutraMax ("Company Common Stock");
WHEREAS, as contemplated by the Stock Purchase
Agreement, Seller has offered to transfer up to 40,000 shares of
Company Common Stock, in the aggregate, to the members of the
Advisory Board of Chilmark Fund II, L.P. ("Chilmark"), the
Managing Member of Seller; and
WHEREAS, Purchaser, a member of such Advisory Board,
desires to purchase from Seller, and Seller is willing to sell to
Purchaser, shares of Company Common Stock on the terms set forth
herein;
NOW THEREFORE, in consideration of these premises and
other good and valuable consideration, the parties hereto hereby
agree as follows:
I. PURCHASE AND SALE
1.1. Purchase and Sale. Upon the terms and subject
to the conditions set forth herein, and in reliance upon the
representations and warranties of the respective parties
contained herein, Purchaser hereby purchases from Seller, and
Seller hereby sells to Purchaser, _________ shares of Company
Common Stock, free and clear of any liens, security interests,
pledges, voting agreements, claims, options and encumbrances of
every kind, character and description whatsoever, except as
contemplated by this Agreement.
1.2. Purchase Price. As consideration for the sale of
the shares of Company Common Stock, contemporaneously with the
execution hereof, Purchaser is paying to Seller a purchase price
equal to $13.04 per share, or an aggregate amount equal to
$____________, by payment either in the form of a certified check
payable to "Cape Xxx Investors, L.L.C." or by wire transfer in
immediately available funds to the account of Cape Xxx Investors,
L.L.C. at Bank of America Illinois (ABA #000000000), account
#71-20648.
II. REPRESENTATIONS AND WARRANTIES
2.1. Purchaser Representations and Warranties. Purchaser
hereby acknowledges, represents and warrants to Seller as
follows:
(a) Purchaser has the legal power and competence to
execute this Agreement.
(b) Purchaser has such knowledge, sophistication and
experience in business and financial matters as to be capable of
evaluating the merits and risks of the Purchaser's investment in
the Company Common Stock.
(c) Purchaser is acquiring the shares of Company
Common Stock hereunder for Purchaser's own account, for
investment only and not with a view to, or any present intention
of, effecting a distribution of such shares or any part thereof.
(d) Purchaser has no need for liquidity in this
investment, has the ability to bear the economic risk of this
investment, and at the present time and in the foreseeable future
can afford a complete loss of this investment.
(e) Purchaser is an "accredited investor" as that term
is defined in Rule 501 promulgated under the Securities Act of
1933, as amended (the "1933 Act").
(f) Purchaser acknowledges that the shares of Company
Common Stock purchased hereunder have not been registered under
the 1933 Act or the securities laws of any state or other
jurisdiction and cannot be disposed of unless they are
subsequently registered under the 1933 Act and any applicable
state laws or unless an exemption from such registration is
available.
(g) Purchaser has been given the opportunity to ask
questions and receive answers concerning the financial condition,
operations and prospects of NutraMax and the terms and conditions
of Purchaser's investment, as well as the opportunity to obtain
any additional information necessary to verify the accuracy of
information furnished in connection therewith, to the extent
Purchaser has considered necessary to make a decision to invest
in the shares of Company Common Stock and has availed himself of
this opportunity to the full extent desired.
(h) No representations or warranties have been made to
Purchaser with respect to this investment other than the
representations of Seller set forth herein and Purchaser has not
relied upon any representation or warranty not provided herein in
making this investment.
2.2. Seller Representation and Warranty. Seller hereby
represents and warrants to Purchaser that Seller is empowered,
authorized and qualified to enter into this Agreement and the
person signing this Agreement on behalf of Seller has been duly
authorized by Seller to do so.
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III. COVENANTS
3.1. Additional Actions. Purchaser agrees to deliver
to Seller such other representations and covenants as to matters
under the 1933 Act as Seller or NutraMax may reasonably request
in order to ensure compliance with the 1933 Act or the
availability of any exemption thereunder.
3.2. Standstill Obligations. Purchaser acknowledges
that the shares of Company Common Stock purchased hereunder are
subject to other restrictions on transferability and to certain
other limitations, restrictions and obligations contained in the
Stock Purchase Agreement and that Purchaser succeeds to the
rights and obligations of Seller contained in Section 5.6 and
Article VI, other than Section 6.2, of the Stock Purchase
Agreement with respect to the shares purchased hereunder.
Purchaser hereby expressly agrees to be bound by all of the terms
of and to perform all of the obligations of Seller contained in
Section 5.6 and Article VI, other than Section 6.2, of the Stock
Purchase Agreement with respect to the shares purchased
hereunder.
IV. INDEMNITY
4.1. Indemnity. Each of Purchaser and Seller agrees,
to the fullest extent permitted by law, to indemnify and hold
harmless the other and, in the case of indemnification by
Purchaser, Chilmark, and each other person, if any, who controls
Seller or Chilmark within the meaning of Section 15 of the 1933
Act, against any and all loss, liability, claim, damage, and
expense whatsoever (including attorneys' fees and disbursements,
judgments, fines and amounts paid in settlement) arising out of
or based upon any breach or failure by Purchaser or Seller, as
the case may be, to comply with any representation, warranty,
covenant, or agreement made by it herein.
V. MISCELLANEOUS
5.1. Survival. Each of Purchaser and Seller agrees that
the representations and warranties set forth herein shall survive the
purchase and sale of shares provided hereunder without limitation
as to time.
5.2. Notices. All notices, consents, requests,
demands, offers, reports, and other communications required or
permitted to be given pursuant to this Agreement shall be in
writing and shall be considered properly given and received when
personally delivered to the party entitled thereto, or when sent
by facsimile or by overnight courier, or three (3) business days
after being sent by certified United States mail, return receipt
requested, in a sealed envelope, with postage prepaid, addressed,
if to Seller, to Cape Xxx Investors, L.L.C., c/o Chilmark Fund
II, L.P., 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx, 00000, and, if to Purchaser, to the address set forth
below Purchaser's signature on the counterpart of this Agreement
which Purchaser originally executed and delivered to Seller. Each
of Purchaser and Seller may change its address by giving notice
to the other.
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5.3. Entire Agreement. This Agreement and the provisions
of the Stock Purchase Agreement referred to herein contain the
entire agreement of the parties with respect to the subject
matter hereof, and supersede all other prior agreements and
undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof, and there are no
representations, covenants, or other agreements except as stated
or referred to herein.
5.4. Third Party Rights; Assignability. This Agreement
is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder, except that Sections
2.1, 3.2, 5.4, 5.5 and 5.9 hereof are also for the benefit of
NutraMax and may be enforced directly by NutraMax. This Agreement
is not transferable or assignable by Purchaser. Any purported
assignment of this Agreement shall be null and void.
5.5. Amendment or Modification. Neither this Agreement
nor any provision hereof shall be amended, modified, changed,
discharged or terminated except by an instrument in writing
signed by both parties hereto and, in the case of any such
amendment, modification, change, discharge or termination
affecting Purchaser's obligations under Section 3.2 or the
provisions of Sections 5.4 or 5.9 or this Section 5.5, NutraMax.
5.6. Counterparts. This Agreement may be executed in
counterpart copies, each of which shall be considered an original
and all of which together constitute one and the same agreement.
5.7. Successors. Except as otherwise provided herein,
this Agreement and all of the terms and provisions hereof shall be
binding upon and inure to the benefit of the parties and their
respective heirs, executors, administrators, successors, trustees
and legal representatives.
5.8. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
5.9. Equitable Relief. Purchaser acknowledges that, in
the event of any breach of this Agreement, Seller and, if
applicable, NutraMax, would be irreparably and immediately harmed
and could not be made whole by monetary damages. It is
accordingly agreed that Seller or, if applicable, NutraMax, in
addition to any other remedy to which it may be entitled, shall
be entitled to an injunction or injunctions to prevent breaches
of this Agreement and to compel specific performance of this
Agreement. Any requirements for the securing or posting of any
bond with respect to such remedy are hereby waived by Purchaser.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day first written above.
CAPE XXX INVESTORS, L.L.C.
By: CHILMARK FUND II, L.P.,
Managing Member
By: CHILMARK II, L.L.C.,
General Partner
By: __________________________________
Name:
Title:
______________________________________
______________________________________
(Print Name of Purchaser)
Purchaser's Name, Mailing Address
and Tax Identification Number:
_______________________________________________
(Name)
_______________________________________________
(Street)
_______________________________________________
(City) (State) (Zip Code)
_______________________________________________
(Facsimile Number)
_______________________________________________
(Tax Identification or Social Security Number)
Purchaser's Address for Notices if
Different from Address Above:
_______________________________________________
(Street)
_______________________________________________
(City) (State) (Zip Code)
_______________________________________________
(Facsimile Number)
