Exhibit (10)(29)
JOINT VENTURE AGREEMENT
between
TFX EQUITIES INCORPORATED
and
MEDICAL STERILIZATION, INC.
Dated as of May 16, 1997
TABLE OF CONTENTS
Page
BACKGROUND................................................................................................................... 1
TERMS........................................................................................................................ 3
1. Definitions and Certain Interpretative Matters ..................................................................... 3
1.1 Certain Defined Terms ..................................................................................... 3
1.2 Other Interpretive Matters ................................................................................ 7
2. Organization and Operation of SSI ................................................................................. 7
2.1 Jurisdiction of Incorporation.............................................................................. 7
2.2 Certificate of Incorporation and Bylaws.................................................................... 7
2.3 The Business of SSI: Other Business Interests and Activities of Participants .............................. 8
2.4 Location................................................................................................... 9
2.5 Directors and Officers; Actions by the Board .............................................................. 9
2.6 Auditors................................................................................................... 11
3. Capitalization of SSI............................................................................................... 11
3.1 Subscription for Common Stock by TFX....................................................................... 11
3.2 Subscription for Common Stock by MSI....................................................................... 11
3.3 Subscription for Preferred Stock by TFX.................................................................... 11
3.4 Contributions by MSI ...................................................................................... 12
3.5 Additional Capital Requirements; Other Services ........................................................... 12
4. Dividends and Distributions......................................................................................... 12
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5. Restriction on Transfer of Shares of SSI: Options to Purchase a Participant's Shares
under Certain Circumstances......................................................................................... 13
5.1 Restrictions on Transfer of Shares......................................................................... 13
5.2 Permitted Transfers........................................................................................ 16
5.3 SSI's Option to Purchase Shares in Certain Events.......................................................... 17
5.4 SSI May Assign its Rights to Purchase Shares............................................................... 18
5.5 Purchase Price ........................................................................................... 18
5.6 Transfers in Violation of this Agreement................................................................... 19
5.7 Failure to Offer or Transfer Shares........................................................................ 19
5.8 Legends on Share Certificates.............................................................................. 20
6. Shares Acquired for Investment...................................................................................... 20
7. Assignment. ........................................................................................................ 20
7.1 Prohibited Assignment...................................................................................... 20
7.2 Permitted Transfer......................................................................................... 21
8. Joinder by SSI...................................................................................................... 21
9. Public Announcements................................................................................................ 21
10. Governing Law; Submission to Jurisdiction of Pennsylvania........................................................... 22
11. Notices............................................................................................................. 22
12. Parties in Interest................................................................................................. 23
13. Amendment and Modification.......................................................................................... 24
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14. Entire Agreement................................................................................................... 24
15. Headings and Titles................................................................................................ 24
16. Counterparts....................................................................................................... 24
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JOINT VENTURE AGREEMENT
THIS IS A JOINT VENTURE AGREEMENT made as of May 16, 1997 between:
TFX EQUITIES INCORPORATED, a Delaware corporation ("TFX"), having its
principal executive office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ West, Building 16, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and
MEDICAL STERILIZATION, INC., a New York corporation ("MSI"), having its
principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
BACKGROUND
A. TFX is a wholly owned subsidiary of Teleflex Incorporated, a
Delaware corporation ("Teleflex").
B. Teleflex, through its wholly owned subsidiary, Pilling ▇▇▇▇ Inc., a
Delaware corporation ("Pilling ▇▇▇▇") manufactures, markets and distributes
throughout the world various surgical instruments and other medical products.
C. Teleflex, through its wholly owned subsidiary, Endoscopy Specialists
Incorporated ("ESI"), is in the business of supplying surgical equipment and
instrumentation to hospitals and providing management, technical and related
services to hospitals.
D. MSI is in the business of (i) leasing surgical instruments to
hospitals and (ii) providing decontaminating, cleaning, disinfecting,
sterilizing, processing, packaging, pickup and delivery of such leased surgical
instruments and related products for hospitals in the Northeast Corridor
(hereinafter defined).
E. MSI desires to expand its surgical instrument leasing and
sterilization business to provide such services to hospitals outside of the
Northeast Corridor; however, it does not presently have the financial and human
resources to successfully launch such an expansion of its business. Therefore,
MSI has determined to launch and conduct such expansion with TFX pursuant to the
terms of this Agreement.
F. TFX which owns approximately 40% of MSI's capital stock on a fully
diluted basis, desires to provide the financial and human resources, through
ESI, Pilling ▇▇▇▇ and other subsidiaries, divisions or Affiliates (hereinafter
defined) of Teleflex, to launch and conduct with MSI a business for the leasing
of surgical instruments and related sterilization and other services to
hospitals and other health care institutions in North America (other than in the
Northeast Corridor) and such other areas as the Participants (hereinafter
defined) may agree.
G. This Agreement sets forth the terms on which the parties hereto will
participate in the organization, capitalization and operation of a new
corporation to be known as "SSI Surgical Services, Inc." ("SSI") to launch and
conduct such business of leasing surgical instruments and
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related sterilization and other services to hospitals and other health care
facilities in North America located outside of the Northeast Corridor.
TERMS
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as
follows:
1. Definitions and Certain Interpretative Matters.
1.1 Certain Defined Terms. The following terms, when used in
this Agreement with initial capital letters, having the meanings indicated:
(a) "Affiliate" with respect to any person means any
other person which controls, is controlled by or is under common control with
such first mentioned person. For this purpose the ownership or control by any
person of 50% or more of the shares of any corporation entitled to vote
generally in the election of directors shall be deemed to evidence control of
such corporation. For all purposes relating to this Agreement, MSI shall not be
considered or deemed to be an Affiliate of TFX unless and until TFX (or an
Affiliate of TFX) shall own greater than 50% of MSI's issued and outstanding
Capital Stock.
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(b) "Board of Directors" or "Board" means the board
of directors of SSI.
(c) "Business" means the business of SSI described in
Section 2.3(a).
(d) "Bylaws" means the bylaws of SSI as amended from
time to time in accordance with applicable law.
(e) "Capital Stock" means shares of Common Stock and
Preferred Stock of SSI.
(f) "Certificate of Incorporation" means the
certificate of incorporation of SSI as amended from time to time in accordance
with applicable law.
(g) "Common Stock" means shares of common stock, par
value $1 each, of SSI.
(h) "Instruments of Indebtedness" means any
promissory note, debenture, bond or other similar instrument of indebtedness of
SSI.
(i) "Northeast Corridor" means the geographic area
where MSI presently conducts or reasonably expects to
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conduct its business operations, specifically being within the borders of the
States of New York, New Jersey, Pennsylvania, Maine, New Hampshire, Vermont,
Connecticut, Rhode Island and Massachusetts.
(j) "Option Events" has the meaning assigned thereto
in Section 5.3(a).
(k) "Option Exercise Date" has the meaning assigned
thereto in Section 5.3(b).
(1) "Participant" means, so long as such person is a
subscriber for or a holder of Capital Stock, (i) each of TFX and MSI, (ii) each
person to whom the interest hereunder of either of the foregoing persons shall
have been assigned by voluntary transfer or corporate merger or consolidation in
a transaction permitted by Section 5.2, and (iii) each person who purchases any
shares of Capital Stock from SSI.
(m) "Permitted Transferee" means a person to whom the
interest hereunder of a Participant shall have been assigned by voluntary
transfer or corporate merger or consolidation in a transaction permitted by
Section 5.2.
(n) "Permitted Transferee of Capital Stock" has the
meaning assigned thereto in Section 5.2.
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(o) "Preferred Stock" means shares of preferred
stock, par value $1 each, of SSI.
(p) "Restricted Holder" means a holder of shares of
Capital Stock who is a Participant or a Permitted Transferee.
(q) "Shareholder" means each Participant so long as
such person holds any shares of Capital Stock.
(r) "SSI Territory" means all geographic areas of
North America, except specifically excluding the Northeast Corridor.
(s) "Technology" means the inventions, techniques,
processes, programs and knowhow of MSI to be licensed to SSI pursuant to the
License Agreement (hereinafter defined).
(t) "License Agreement" means the technology license
agreement between SSI and MSI referred to in Section 3.4, as the same may be
amended from time to time.
(u) "Value" has the meaning assigned thereto in
Section 5.5.
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1.2 Other Interpretive Matters.
(a) Unless otherwise specified, all references herein
to "Articles," "Sections," "Schedules" or "Exhibits" are to Articles, Sections,
Schedules or Exhibits of or to this Agreement.
(b) No provision of this Agreement will be
interpreted in favor of, or against, any party hereto by reason of the extent to
which such party or its counsel participated in the drafting thereof or by
reason of the extent to which any such provision is inconsistent with any prior
draft hereof.
2. Organization and Operation of SSI
2.1 Jurisdiction of Incorporation. SSI will be incorporated
under the laws of the State of Delaware.
2.2 Certificate of Incorporation and Bylaws. The Certificate
of Incorporation and Bylaws of SSI will be substantially as set forth in
Exhibits "A" and "B" hereto.
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2.3 The Business of SSI; Other Business Interests and
Activities of Participants.
(a) The business of SSI (the "Business") will be to
lease surgical instruments and related products to hospitals and other health
care facilities located within the SSI Territory together with the related
performance of decontamination, cleaning, disinfecting, sterilization,
processing, packaging, pickup and delivery services with respect to such leased
surgical instruments and related products.
(b) SSI may also engage in such other business as
the Board of Directors may from
time to time determine.
(c) SSI may engage in the Business in the Northeast
Corridor if the Participants hereafter determine that it is in their respective
best interests and the best interests of SSI to do so. Nothing herein shall be
construed or interpreted to authorize SSI's conduct of the Business in any part
of the Northeast Corridor unless and until each Participant expressly consents
to and authorizes such action.
(d) Each Participant has other business activities
and interests, some of which relate to or may be competitive with the Business
of SSI. The Participants specifically acknowledge that MSI's business as
presently conducted by it in the Northeast Corridor is competitive with the
Business of SSI as contemplated to be conducted by this Agreement. Nothing in
this Agreement or in any other agreement or instrument executed pursuant hereto
shall
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be interpreted or construed to restrict or limit in any manner (i) MSI's ability
to conduct its business and affairs in the Northeast Corridor, (ii) TFX' ability
to conduct any business presently conducted by it or an Affiliate (including any
other related business activities which hereafter may flow therefrom by a
reasonable expansion and development of any such business activities presently
conducted by TFX or an Affiliate), whether conducted within or without the SSI
Territory or the Northeast Corridor, or (iii) MSI's or TFX' (or an Affiliate of
either) ability to conduct any business of any nature or description whatsoever
outside of the SSI Territory, whether or not any such business is similar or
dissimilar to the Business of SSI.
(e) No Participant shall have any obligation or duty
to offer to SSI any corporate or business opportunity to engage in any business
activity other than the Business of SSI specifically described in Section 2.3(a)
of this Agreement.
2.4 Location. SSI shall have offices and facilities where the
Board of Directors determines. The parties presently contemplate that the
initial headquarters of SSI will be in the vicinity of Orlando, Florida.
2.5 Directors and Officers; Actions by the Board.
(a) The Board of Directors of SSI will consist of
such number of directors as may be fixed by the Board pursuant to the Bylaws;
provided that such number of directors shall not be less than three. The initial
Board will consist of the following persons:
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▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(b) The parties contemplate that SSI may organize one
or more wholly owned subsidiaries from time to time to conduct the Business in
specific geographic regions within the SSI Territory.
(c) Except as the Board or the shareholders of SSI
may hereafter determine from time to time, the directors of SSI will serve
without compensation. SSI will reimburse each director for all reasonable
expenses incurred by such director in the performance of his or her duties,
including attendance at Board meetings.
(d) The Board of Directors will appoint the officers
of SSI in accordance with applicable law. It is not presently contemplated by
the parties that any of MSI's officers or employee's will serve as an officer of
SSI.
(e) Each Participant will nominate one person to
serve as its representative on SSI's Board of Directors (a "Participant's
Representative"). The Participants will at all times vote their shares of
Capital Stock to elect each such Participant's Representative to the Board of
Directors. In any transaction, business activity or other matter which requires
the consent of a Participant, the consent or approval of a Participant's
Representative at any meeting of SSI's Board of Directors or shareholders shall
constitute the required consent of a Participant.
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The Participants contemplate that MSI's initial Representative on SSI's Board of
Directors will be D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and TFX' initial Representative will be
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇. A Participant may change its designated Representative at any
time and from time to time by providing notice of such change to SSI and the
other Participants.
2.6 Auditors. The auditors of SSI will be selected by the
Board of Directors. Such auditors may also be the auditors for any Participant.
It is anticipated that the initial auditors of SSI will be Price Waterhouse.
3. Capitalization of SSI.
3.1 Subscription for Common Stock by TFX. TFX will subscribe
for 625 shares of Common Stock at the price per share of $1.00, being $625 in
the aggregate.
3.2 Subscription for Common Stock by MSI. MSI will subscribe
for 375 shares of Common Stock at the price per share of $1.00, being $375 in
the aggregate.
3.3 Subscription for Preferred Stock by TFX. TFX will
subscribe for 100 shares of Preferred Stock at a price per share of $50,000,
being $5,000,000 in the aggregate, which Preferred Stock will have terms and
conditions substantially as set forth in Exhibit C (the "Series A Preferred
Stock"). TFX will pay the $5,000,000 aggregate purchase price for the Series A
Preferred Stock by paying One Hundred Thousand Dollars ($100,000) in cash to SSI
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and issuing to SSI its Demand Note in the amount of $4,900,000 in substantially
the form of Exhibit D hereto.
3.4 Contributions by MSI. MSI will license to SSI the
Technology for SSI's exclusive use and benefit in the SSI Territory pursuant to
a License Agreement in substantially the form of Exhibit E hereto.
3.5 Additional Capital Requirements; Other Services.
(a) The Participants contemplate that SSI will
require additional capital financing, which it is anticipated will be realized
by long term and short term borrowings by SSI and by its sale of Instruments of
Indebtedness. TFX may make available to SSI all or a part of such financing from
its own resources, but TFX has no obligation to do so.
(b) The Participants contemplate that TFX and MSI
will provide management and other services to SSI, including from time to time
temporary or parttime service of employees of TFX, MSI or an Affiliate of
either, the cost of which will be charged to SSI.
4. Dividends and Distributions. SSI will pay such dividends and
distributions to the holders of its Capital Stock as may be declared by the
Board of Directors from time to time in accordance with applicable law.
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5. Restriction on Transfer of Shares of SSI; Options to Purchase a
Participant's Shares under Certain Circumstances.
5.1 Restrictions on Transfer of Shares.
(a) No Transfer Without Compliance with this
Article. No Participant will sell, transfer or otherwise dispose of any shares
of Capital Stock held by such Participant except in compliance with this Section
5.1 or as permitted by Section 5.2. The term "sell", "transfer" or "otherwise
dispose" with respect to any share of Capital Stock means any voluntary action
intended to create an interest in or change the ownership of any such share, or
having the same effect, including but not limited to any sale, gift or exchange
or any transfer by reason of a corporate merger or consolidation.
(b) Right of First Refusal. If a Participant
proposes to sell or otherwise dispose of any Shares otherwise than in a
transaction permitted by Section 5.2, such Participant (a "Selling Holder") will
give written notice thereof (the "Selling Holder's Notice") to SSI and each
other Participant (the "Other Participants"), stating (i) the identity of the
proposed transferee and the number of shares of Capital Stock to be transferred,
(ii) the value of the consideration to be received by the Selling Holder
therefor and (iii) the other terms and conditions of such transaction, and such
Participant will offer to sell such shares on the same terms and conditions
(except that the price shall be the lesser of (x) the value of the consideration
from the proposed transferee and (y) the Value as determined pursuant to Section
5.5 hereof) to SSI and, to the
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extent that such offer shall not be accepted as to all such shares, to the Other
Participants, as hereinafter provided. SSI may assign its rights to purchase any
such shares to such persons, including Other Participants, as its Board of
Directors may determine.
(c) Purchase by SSI and its Assigns. SSI and its
assignees referred to in paragraph (b) of this Section may accept all or any
part of such offer by giving written notice to the Selling Holder, specifying
the number of whole shares to be purchased, within thirty (30) days after SSI's
receipt of the Selling Holder's Notice.
(d) Purchase by Other Participants. If SSI and its
assignees shall not have accepted such offer to purchase all such shares within
the time provided therefor in paragraph (c), the Selling Holder will forthwith
give notice thereof to the Other Participants. Such notice shall include a copy
of the Selling Holder's Notice, a statement of the number of shares so accepted
for purchase by SSI and its assignees, and an offer to sell the balance of the
shares referred to in such Selling Holder's Notice (the "Remaining Shares") to
the Other Participants on the terms and conditions referred to in paragraph (b)
of this Section. Such Other Participants may accept such offer by giving notice
in writing to such Selling Holder, specifying the number of whole shares to be
purchased. Any such notice of acceptance shall be given within thirty (30) days
after such Participant's receipt of the copy of the Selling Holder's Notice and
statement given pursuant to this paragraph. If more than one such Other
Participant elects to purchase any of such shares, each will have the right to
purchase that number of whole shares which bears the same ratio (treating
fractional amounts as the closest whole number) to the total
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number of Remaining Shares as the number of shares of Capital Stock then held by
such Other Participant bears to the total number of shares held by the all
Participants who have elected to purchase any such shares. If any Participant's
notice of acceptance specifies a number of shares greater than the proportionate
amount which such Participant has the right to purchase hereunder, such
acceptance will be deemed to be reduced to the maximum number of whole shares
which such Participant may so purchase.
(e) Election to Purchase Less Than All Shares Offered
is Revocable By Selling Holder. If SSI, its assignees and the Other Participants
shall have given notices of election to purchase less than all the shares
offered for sale by a Selling Holder's Notice, the Selling Holder's offer to
sell such shares to SSI and such Other Participants pursuant to his Section may
be revoked by such Selling Holder within ten (10) days after the expiration of
the period specified in paragraph (d) of this Section.
(f) Selling Holder May Transfer Unaccepted Shares. If
all such shares shall not have been sold to one or more of SSI, its assignees
and the Other Participants pursuant to the foregoing provisions of this Section,
then the Selling Holder may sell or otherwise dispose of such shares to the
proposed transferee on the terms and conditions specified in the Selling
Holder's Notice within a period of thirty (30) days following the expiration of
the time during which SSI and the Other Participants were entitled to accept the
offer to purchase any such shares. If such shares shall not be so sold or
otherwise disposed of by the Selling Holder, such shares will again be subject
to the restrictions of this Agreement.
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5.2 Permitted Transfers. The following transfers of shares of
Capital Stock may be made by a Participant without compliance with Section 5.1;
provided that in the case of a transfer provided for in paragraph (a) of this
Section, such shares shall continue to be subject, with respect to any further
transfer by the transferee thereof, to the restrictions set forth in this
Article, and each such transferee, as a condition to the registration by SSI of
the transfer of such shares, will deliver to SSI a written undertaking to be
bound by the provisions of this Article. Each transferee of shares pursuant to a
transaction permitted by this Section is sometimes herein referred to as a
"Permitted Transferee of Capital Stock."
(a) Successors and Affiliates of the TFX Participant.
Any transfer to (i) any Affiliate of the TFX Participant or (ii) any successor
(by merger, sale or otherwise) to all or any substantial part of the business of
the TFX Participant or any Affiliate thereof
(b) Acquisition of Substantially All Shares. A
transfer to a person pursuant to an offer to acquire all outstanding shares of
Capital Stock on substantially the same terms, which offer shall have been
approved by the Participants holding at least 51% of all shares of Capital Stock
then held by Participants.
(c) Public Offering. Any sale and transfer of shares
of Capital Stock pursuant to an effective registration statement filed by SSI
under the Securities Act of 1933.
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5.3 SSI's Option to Purchase Shares in Certain Events.
(a) Upon the occurrence of any of the following
events (an "Option Event") affecting or relating to a Restricted Holder or the
shares of Capital Stock held by a Restricted Holder, SSI shall have the option
to purchase all (but not less than all) of the shares of Capital Stock held by
such Participant at such time:
(i) a Restricted Holder shall purport to
transfer any shares of Capital Stock
held by such Restricted Holder in
violation of the provisions of
Section 5.1;
(ii) any shares of Capital Stock held by
a Restricted Holder shall be
attached, levied upon or executed
against in connection with the
enforcement of any lien, judgment or
encumbrance or otherwise be
transferred by operation of law; or
(iii) an order for relief against a
Restricted Holder shall be entered
in an involuntary case under the
United States Bankruptcy Code, or a
Restricted Holder shall be
adjudicated a bankrupt or insolvent,
or an order shall be entered
appointing a receiver or trustee for
such Restricted Holder's property or
approving a petition seeking
reorganization or other similar
relief under the bankruptcy or other
similar laws of the United States or
any state or any other jurisdiction,
or a Restricted Holder shall file a
petition, answer or other document
seeking or consenting to any of the
foregoing or otherwise seeking to
take advantage of any debtor's act.
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(b) Such option may be exercised by SSI (or any
assignee of SSI) at any time within ninety (90) days after the date SSI shall
have received written notice that an Option Event has occurred.
5.4 SSI May Assign its Rights to Purchase Shares. SSI may,
upon due authorization by the Board of Directors, assign to one or more persons
(each of whom then is, or upon acquisition of any shares of Capital Stock shall
become, a party to this Agreement) all or any part of SSI's right to purchase
any shares of Capital Stock pursuant to the option provided for in Section 5.3
hereof.
5.5 Purchase Price. The purchase price of the shares of a
Restricted Holder purchased by exercise of the option under Section 5.3 will be
the Value thereof determined pursuant to this Section. The Participants may at
any time and from time to time agree in writing upon the "Value" of each share,
which writing shall be signed by each Participant and attached to this
Agreement, shall stipulate the period of time during which such Value shall
remain effective, and may contain any other limiting terms and conditions as the
Participants may agree. In the absence of an effective written agreement, the
"Value" of each such share will be the amount, determined pursuant to the
procedure provided for in the balance of this Section, which would be
distributed to such Restricted Holder in respect of such shares if (i) all of
the assets and business of SSI were sold on the date when SSI exercises its
option under Section 5.3 (the "Determination Date") at such reasonable price as
might be paid by a willing buyer thereof who assumed all of SSI's obligations
and liabilities and (ii) the net proceeds of such sale, after deducting taxes
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payable by SSI and SSI's expenses of such sale and the windingup of its
business, were distributed to the stockholders of SSI as liquidating
distributions. If SSI (or its assignee) and such Restricted Shareholder shall
not have agreed in writing on the Value of the shares, within 60 days after the
Determination Date, such parties will endeavor to agree upon an appraiser whose
determination of Value shall be final. If such parties are unable to agree upon
such an appraiser within 90 days after the Determination Date, each such party
will designate a qualified appraiser of recognized standing in the United
States, and the Value of such shares will be the mean of the amounts thereof
determined by such appraisers. If such Restricted Holder fails to appoint such a
qualified appraiser, the Value will be the amount determined by the appraiser
appointed by SSI.
5.6 Transfers in Violation of this Agreement. SSI shall not
register any transfer of a share of Capital Stock made in violation of this
Agreement.
5.7 Failure to Offer or Transfer Shares. If, upon the exercise
of the option provided for in Section 5.3, any person holding shares of Capital
Stock subject to purchase hereunder does not assign and transfer such shares to
the purchaser thereof upon tender of the purchase price therefor, such tender
will result in an immediate assignment and transfer of such shares to such
purchaser. Upon receipt of notice thereof, SSI will ▇▇▇▇ its records to indicate
that the certificate or certificates for such shares are canceled and will issue
new certificates therefor to such purchaser. Each Participant and Permitted
Transferee hereby appoints irrevocably the Secretary of SSI from time to time in
office the attorney for such person to make
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assignments and transfers on SSI's books on behalf of such person in accordance
with the foregoing.
5.8 Legends on Share Certificates. All certificates
representing shares of Capital Stock at any time held by a Participant will bear
thereon a legend in substantially the following form:
"The shares represented by this certificate may not
be transferred except in compliance with a certain
agreement among the issuer hereof and certain of its
shareholders, dated as of May 16, 1997."
6. Shares Acquired for Investment. Each Participant represents that it
is acquiring the shares of Capital Stock to be acquired by it pursuant hereto
for investment only and without any view to the distribution thereof.
7. Assignment.
7.1 Prohibited Assignment. Except for Permitted Transfers, no
Participant may assign (by conveyance, merger, operation of law or otherwise)
any of its rights or interests in this Agreement.
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7.2 Permitted Transfer. A "Permitted Transfer" is any of the
following:
(a) A transfer by any Participant of any of such
Participant's interest hereunder or in SSI to a person who is at the time a
Participant.
(b) A transfer by any Participant of any shares of
Capital Stock permitted by or in compliance with Article 5.
(c) A transfer by any Participant of substantially
all of its other interests hereunder to a person to whom a Permitted Transfer
referred to in paragraph (b) of this Section is made.
8. Joinder by SSI. SSI will join in this Agreement as a party by
executing a counterpart hereof. Thereafter SSI will be bound by the
restrictions, and be entitled to the benefits, of this Agreement.
9. Public Announcements. Without the prior written consent of the
other Participants, which consent will not be unreasonably withheld, no
Participant will make any public announcement including, but not limited to, any
press release concerning the existence or terms of this Agreement, any other
agreement or instrument executed pursuant hereto, or the transactions
contemplated hereby and thereby.
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10. Governing Law; Submission to Jurisdiction of Pennsylvania. This
Agreement will be governed by and construed in accordance with the internal
substantive laws of the Commonwealth of Pennsylvania without giving effect to
conflicts of laws provisions. For the purpose of any suit, action or proceeding
arising out of or relating to this Agreement, each Participant and SSI hereby
irrevocably consents and submits to the jurisdiction and venue of any of the
courts of the Commonwealth of Pennsylvania or of any Federal Court located in
Pennsylvania including, without limitation, the Court of Common Pleas of
Philadelphia County and the United States District Court for the Eastern
District of Pennsylvania. Each Participant and SSI hereby irrevocably agrees to
service of process by certified mail, return receipt requested, postage prepaid,
to their respective addresses set forth in Section 11 of this Agreement. Each
Participant and SSI irrevocably waives any objection which any of them may now
or hereafter have to the laying of the venue of any such suit action or
proceeding brought in any such court and any claim that such suit, action, or
proceeding brought in such a court has been brought in an inconvenient forum and
agrees that service of process in accordance with this Article shall be deemed
in every respect effective and valid personal service of process upon such
party.
11. Notices. All notices, consents and other communications required
or permitted hereunder or in connection herewith or the transactions
contemplated hereby shall be in writing and shall be deemed to have been duly
given if delivered or sent by receipt verified telefax (or any similar means of
electronic communication) to a party at the following addresses or to such other
address as such party may hereafter specify by notice:
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If to TFX or SSI
(before it shall establish its office pursuant to Section 2.4)
to:
TFX Equities Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇▇▇▇▇
With a required copy to:
▇▇▇▇▇▇▇ and Associates
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇▇▇▇▇
If to MSI to:
Medical Sterilization, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇▇▇▇▇
With a required copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇▇▇▇▇
12. Parties in Interest. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
23
13. Amendment and Modification. No amendment or modification of or
supplement to this Agreement will be effective unless it is in writing and duly
executed by each party to be charged thereunder.
14. Entire Agreement. This Agreement and the documents and instruments
executed pursuant hereto contain the entire agreement among the parties hereto
with respect to the subject matter hereof and supersede any other prior
agreements or understandings between any of them relating thereto.
15. Headings and Titles. The headings and titles of articles,
sections, paragraphs and the like in this Agreement are inserted for convenience
of reference only, form no part of this Agreement and shall not be considered
for the purpose of interpreting or construing the provisions hereof.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first above written.
TFX EQUITIES INCORPORATED
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
MEDICAL STERILIZATION, INC.
By: /S/ D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Joinder by:
SSI SURGICAL SERVICES, INC.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, President
25
