Exhibit 1
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT, dated as of December 28, 2000 (this "Agreement")
among OrthoStrategies Inc., a New York corporation, ("OS"), OrthoStrategies
Acquisition Corp., a New York corporation and a wholly owned subsidiary of OS
("Purchaser"), The Xxxxxx Biomechanics Group, Inc., a New York corporation (the
"Company"), and the individuals and entities listed on Exhibit A attached hereto
(each, a "Shareholder" and, collectively, the "Shareholders").
R E C I T A L S:
OS, Purchaser, and the Company propose to enter into a Tender Offer
Agreement dated as of the date hereof (as the same may be amended or
supplemented, the "Offer Agreement") providing for the making of a cash offer
(as such offer may be amended from time to time as permitted under the Offer
Agreement, the "Offer") by Purchaser for up to 1,959,886 (equivalent to 75%) of
the outstanding shares of common stock, par value $.02 per share, of the Company
("Company Common Stock"), upon the terms and subject to the conditions set forth
in the Offer Agreement; and
Each Shareholder owns the number of shares of Company Common Stock set
forth opposite his or its name on Exhibit A attached hereto (such shares of
Company Common Stock, together with any other shares of capital stock of the
Company acquired by such Shareholders after the date hereof and during the term
of this Agreement, including, without limitation, through the exercise of any
stock options, warrants or similar instruments, being collectively referred to
herein as the "Subject Shares"); and
As a condition to their willingness to enter into the Offer Agreement, OS
and Purchaser have requested that each Shareholder enter into this Agreement;
NOW, THEREFORE, to induce OS and Purchaser to enter into, and in
consideration of their entering into, the Offer Agreement, and in consideration
of the premises and agreements contained herein, the parties agree as follows
(capitalized terms used herein but not defined herein have the meanings set
forth in the Offer Agreement):
1. Purchase and Sale of Subject Shares. Each Shareholder hereby severally
agrees to tender to Purchaser in the Offer, and Purchaser hereby agrees to
purchase, subject to the terms and conditions set forth herein and in the Offer,
including, without limitation, terms regarding the proration of Company Common
Stock to be purchased in the Offer, all Subject Shares set forth opposite such
Shareholder's name on Exhibit A hereto, at a price per Share equal to the
initial Offer Price of $1.525 per share provided that notwithstanding any
provision herein to the contrary, upon the closing of the Offer, Purchaser shall
pay each Shareholder $1.525 per Share (or such higher price as Purchaser may set
in the Offer) for each Share tendered. All Subject Shares required to be
tendered in accordance herewith (a) shall be tendered in the most expeditious
manner as promptly as practicable after the date of this Agreement and in such
connection each Shareholder shall deliver on
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the date hereof (1) all necessary instructions and authorizations to brokerage
firms which may be holding such Subject Shares to tender the Subject Shares to
the Depository Agent engaged by OS for the Offer and (2) Subject Shares held
directly to the Depository Agent engaged by OS for the Offer, and (b) such
tender and instructions shall not be withdrawn by any Shareholder without
Purchaser's consent, except if the Offer Agreement is terminated in accordance
with its terms or by reason of breach by OS or Purchaser.
2. Representations and Warranties of Each Shareholder. Each Shareholder
hereby represents and warrants, severally and not jointly, to OS and Purchaser
as of the date hereof only in respect of himself or itself as follows:
(a) Organization. If Shareholder is a corporation, limited
partnership or trust, it has been duly organized and is validly existing under
the laws of the jurisdiction in which it was formed.
(b) Authority. The Shareholder has all requisite power and authority
to enter into this Agreement and the transactions contemplated hereby and to
perform his or its obligations pursuant to the terms of this Agreement. The
execution and delivery of this Agreement by the Shareholder, the performance of
his or its covenants and agreements hereunder, and the consummation of the
transactions contemplated hereby, have been duly authorized by all necessary
action on the part of the Shareholder. This Agreement has been duly executed and
delivered by the Shareholder and constitutes a valid and binding obligation of
the Shareholder enforceable against the Shareholder in accordance with its
terms, except as the enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws, and general principles
of equity, affecting creditors rights generally.
(c) No Legal Bar; Conflicts. Except for informational filings with
the Securities and Exchange Commission ("SEC"), the execution and delivery of
this Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, (i) conflict with, or
result in any violation of, or default (with or without notice or lapse of time
or both) under, any provision of, any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, writ, injunction, decree, statute,
law, ordinance, rule or regulation applicable to the Shareholder or to the
Shareholder's property or assets, including the Subject Shares, or (ii) require
any filing by the Shareholder with, or permit, authorization, consent or
approval of, or notice to, any federal, state or local government or any court,
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, domestic, foreign or supranational. If the
Shareholder's Subject Shares constitute community property or the Shareholder
otherwise needs spousal or other approval for this Agreement to be legal, valid
and binding, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder's spouse,
enforceable against such spouse in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy laws or creditors' rights
generally or by general principles of equity.
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(d) The Subject Shares; Options. The Shareholder is the record or
beneficial owner of, and has good and marketable title to, the Subject Shares
and the options or warrants (herein "Options") set forth opposite his name on
Exhibit A attached hereto, free and clear of any liens or encumbrances of any
kind other than, in the case of the Options, the restrictions or encumbrances
set forth in the instruments evidencing such Options or pursuant to which they
were acquired by Shareholder, and there is no restriction on Shareholder's
ability, power or right to transfer or dispose of his or its Subject Shares,
other than applicable federal and state securities laws and the restrictive
legends which may appear on the stock certificates therefor. The Shareholder
does not own of record any shares of capital stock of the Company or any
Subsidiary other than the Subject Shares set forth opposite his or its name on
Exhibit A attached hereto. The Shareholder has the sole right to vote and
transfer his or its Subject Shares, and none of his or its Subject Shares is
subject to any proxy, voting trust, voting agreement, shareholders agreement,
buy-sell agreement, right-of-first refusal or other agreement, arrangement or
restriction with respect to the voting or transfer of such Subject Shares,
except as contemplated by this Agreement.
(e) Brokers. No broker, finder, investment banker or other person is
entitled to any brokerage, finder's or other fee or commission in connection
with the execution of this Agreement by such Shareholder or the performance by
such Shareholder of his or its obligations hereunder.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to OS and Purchaser as follows:
(a) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
and has full corporate power and authority to own its properties and to conduct
the businesses in which it is now engaged.
(b) Authority. The Company has all requisite power and authority to
enter into this Agreement and the transactions contemplated hereby and to
perform its obligations pursuant to the terms of this Agreement. The execution,
delivery and performance of this Agreement by the Company, and the consummation
of the transactions contemplated hereby, have been duly authorized by all
necessary action on the part of the Company. This Agreement has been duly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as the enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws, and general principles
of equity, affecting creditors rights generally. Except for informational
filings with the SEC, the execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated hereby and compliance with the
terms hereof will not, (i) conflict with, or result in any violation of, or
default (with or without notice or lapse of time or both) under, any provision
of, any loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise, license, judgment,
order, notice, writ, injunction, decree, statute, law, ordinance, rule or
regulation applicable to the Company or to the Company's property or assets, or
(ii) require any filing by the Company with, or permit, authorization, consent
or approval of, or notice to, any federal, state or local government or any
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court, tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, domestic, foreign or supranational.
4. Representations and Warranties of OS and Purchaser. Each of OS and
Purchaser hereby represents and warrants to each Shareholder and the Company as
follows:
(a) Organization. Each of OS and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York and has full corporate power and authority to own its properties and to
conduct the businesses in which it is now engaged.
(b) Authority. Each of OS and Purchaser has all requisite power and
authority to enter into this Agreement and the transactions contemplated hereby
and to perform its obligations pursuant to the terms of this Agreement. The
execution, delivery and performance of this Agreement by OS and Purchaser, and
the consummation of the transactions contemplated hereby, have been duly
authorized by all necessary action on the part of OS and Purchaser. This
Agreement has been duly executed and delivered by OS and Purchaser and
constitutes a valid and binding obligation of each of OS and Purchaser
enforceable against OS and Purchaser in accordance with its terms, except that
the enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws, and general principles of equity,
affecting creditors rights generally. Except for informational filings with the
SEC, the execution and delivery of this Agreement do not, and the consummation
of the transactions contemplated hereby and compliance with the terms hereof
will not, (i) conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under, any provision of, any loan or
credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license, judgment, order, notice,
writ, injunction, decree, statute, law, ordinance, rule or regulation applicable
to OS or Purchaser or to OS's or Purchaser's property or assets, or (ii) require
any filing by OS or Purchaser with, or permit, authorization, consent or
approval of, or notice to, any federal, state or local government or any court,
tribunal, administrative agency or commission or other governmental or
regulatory authority or agency, domestic, foreign or supranational.
(c) Brokers. No broker, finder, investment banker or other person is
entitled to any brokerage, finder's or other fee or commission for which any
Shareholder or the Company will be liable in connection with the execution of
this Agreement by OS and Purchaser or the performance by OS and Purchaser of
their obligations hereunder.
(d) Investment Intent. The Purchaser is acquiring those Subject
Shares that bear a restrictive legend for investment and not with a view toward,
or for sale in connection with, any distribution thereof, nor with any present
intention of distributing or selling the Subject Shares. Purchaser acknowledges
that certain of the Subject Shares bear restrictive legends as identified on
Exhibit A and may be "restricted stock" and are accordingly being acquired
pursuant to the so-called 4(1-1/2)exemption, or other applicable exemption, from
the Securities Act of 1933, as amended. Nothing in this Agreement is intended to
or shall restrict the Purchaser's right to sell or
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transfer the Subject Shares subsequent to the Purchaser's acquisition thereof,
subject to compliance with applicable securities laws.
(e) Sophistication. The principals of Purchaser and OS have such
knowledge and experience in financial and business matters, and in particular in
investments in companies in the industry in which the Company operates, to
enable them to make an informed decision with respect to the acquisition of the
Subject Shares. Such principals have received copies of the Company's filings
with the Securities and Exchange Commission within the past 12 months and have
seen and reviewed the Offer Agreement, including the Schedules thereto.
5. Covenants of Each Shareholder. Until the termination of this Agreement
in accordance with Section 14, each Shareholder, severally and not jointly,
agrees as follows:
(a) At any meeting of Shareholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Shareholder's
vote, consent or other approval is sought under applicable law, the Shareholder
shall, or shall cause the record holder of his or its Subject Shares to, vote
(or cause to be voted) his or its Subject Shares (and each class thereof)
against (i) any amendment of the Company's Certificate of Incorporation or
by-laws, which amendment would be reasonably likely to impede, frustrate,
prevent or nullify the Offer or any of the other transactions contemplated by
the Offer Agreement or change in any manner the voting rights of any class of
Company Common Stock, (ii) any action that would cause the Company to breach any
representation, warranty or covenant contained in the Offer Agreement or (iii)
any action to elect to the Company's Board of Directors anyone other than the
designees of Purchaser or replacements of existing Directors, which replacement
Directors agree to resign on the Closing of the Offer.
(b) The Shareholder shall not, except as contemplated by Section 1
and Section 6 hereof or with the written consent of OS or Purchaser, during the
period commencing as of the date hereof and ending on the earlier of (i) the
purchase of Subject Shares pursuant to Section 1 or Section 6 hereof and (ii)
March 31, 2001, (A) sell, transfer, give, pledge, assign or otherwise dispose of
(including by gift) (collectively, "Transfer"), or consent to any Transfer of,
any or all of such Subject Shares or Options or any interest therein or enter
into any contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of the Subject Shares or Options to
any person or (B) enter into any voting arrangement, directly or indirectly,
whether by proxy, voting agreement or otherwise, in respect of the Subject
Shares and shares issuable upon exercise of the Options, and the Shareholder
agrees not to commit or agree to take any of the foregoing actions. Any transfer
or attempted transfer of Subject Shares in violation of this Agreement shall be
void and of no force and effect.
6. Transfer to Purchaser.
(a) Each Shareholder agrees that if the Offer is not completed or is
terminated in each case due to the receipt by the Company or its shareholders of
a Company Acquisition Proposal at a higher price per share than the initial
Offer Price of $1.525 per share, then upon the Purchaser's election at any time
within the Purchase Period set forth in this Section 6, such
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Shareholder shall sell all, but not less than all, of his or its Subject Shares
to Purchaser at $1.525 per share.
Purchaser shall send notice of its election to purchase the Subject Shares
of each Shareholder (the "Purchase Notice") no later than 11:59 P.M. March 31,
2001 (the "Purchase Period"). The Purchase Notice shall specify a time (the
"Closing Date") and place for the transfer of each Shareholder's Subject Shares
which shall not be less than five (5) or more than twenty (20) days after the
date of the Purchase Notice. At closing, Purchaser shall pay to each Shareholder
the aggregate purchase price for his or its Subject Shares, by bank check or
wire transfer of immediately available funds to accounts designated by each
Shareholder no later than two days prior to the Closing Date, against delivery
of the stock certificates representing the Subject Shares duly endorsed or
accompanied by stock powers duly endorsed in blank with signatures medallion
guaranteed. All Subject Shares shall be delivered free and clear of any and all
liens, claims, encumbrances or restrictions. The obligation of each Shareholder
to transfer the Subject Shares to Purchaser pursuant to this Section 6 shall
continue in full force and effect during the Purchase Period despite the
existence of a Company Acquisition Proposal.
(b) Each Shareholder agrees that such Shareholder will deliver to
the Company, immediately after the execution hereof (or, in the event Subject
Shares are acquired by a Shareholder subsequent to the date hereof, immediately
after such acquisition), any and all certificates representing such
Shareholder's Subject Shares in order that the Company may inscribe upon such
certificates a legend confirming the Agreements contained herein. Upon receipt
of such certificates the Company shall promptly inscribe the legend on
certificates representing such Subject Shares, and deliver the same to such
Shareholder, who will immediately thereafter or, if later, promptly upon
commencement of the Offer, tender the same to the Depositary Agent engaged by
Purchaser to facilitate the Offer.
7. Covenants of the Company. Until the termination of this Agreement in
accordance with Section 14, the Company agrees not to permit any transfer of
Subject Shares in violation of this Agreement to be recorded on its books and
records and, concurrently herewith shall so direct its transfer agent and all
parties hereto acknowledge such direction.
8. Further Assurances. Each Shareholder will from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Purchaser may reasonably request
for the purpose of effectively carrying out the transactions contemplated by
this Agreement.
9. Successors; Recapitalizations. Each Shareholder agrees that this
Agreement and the obligations hereunder shall attach to such Shareholder's
Subject Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Subject Shares shall pass, whether by operation of
law or otherwise, including without limitation such Shareholder's heirs,
guardians, administrators or successors. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Company Common Stock, or the
acquisition of additional shares of Company Common Stock or other voting
securities of the Company by any Shareholder, the number of Subject Shares
listed in Exhibit A beside the name of such Shareholder shall be adjusted
appropriately and this Agreement
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and the obligations hereunder shall attach to any additional shares of Company
Common Stock or other voting securities of the Company issued to or acquired by
such Shareholder.
10. Options. Each of Xxxxxxx Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx
and Xxxxxx X. Xxxxxx (the "Option Sellers") agrees not to exercise any of his
Options prior to the earlier of March 31, 2001 or the purchase of Shares
pursuant to the Offer or Section 6 hereof. Further each of the Option Sellers
agrees effective upon the purchase of Shares pursuant to the Offer or Section 6
hereof, to sell and transfer to the Company for the amount set forth opposite
his name on Exhibit A hereto, all right, title and interest he may have to
purchase or acquire any shares of Company Common Stock, including the options or
warrants ascribed to him on Exhibit A hereto.
11. Release. On the Closing Date, each Shareholder shall execute and
deliver a release in favor of the Company of any and all claims which such
Shareholder may have or had against or with respect to the Company, its
successors or assigns, in his or its capacity as a Shareholder of the Company,
by virtue of any matter, cause or thing arising prior to the Closing Date.
12. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party or parties without the
prior written consent of all the other parties, except that (i) Purchaser may
assign, in its sole discretion, in whole or in part, any or all of its rights,
interests and obligations hereunder to any shareholder of OS which has committed
to fund Purchaser for purposes of the Offer Agreement and any subsidiary of OS
that may be substituted for Purchaser as contemplated by the Offer Agreement,
and (ii) OS may assign, in its sole discretion, any and all of its rights,
interests and obligations hereunder to any direct or indirect wholly owned
subsidiary of OS, provided that OS will continue to remain primarily liable for
its obligations hereunder in the event of any assignment pursuant to this clause
(ii). Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns.
13. Conditions. The obligations of OS and Purchaser to purchase and the
obligations of each Shareholder to sell the Subject Shares pursuant to Section 1
of this Agreement shall be subject to the prior satisfaction or waiver of the
following conditions:
(a) Purchaser shall have accepted the Subject Shares for payment
under the terms of the Offer;
(b) the Minimum Condition shall have been satisfied;
(c) all regulatory approvals required by any applicable law, rule,
or regulation, including any applicable local, state, federal or foreign
regulation, shall have been obtained, and each such approval shall be final;
(d) all conditions to the obligations of OS and Purchaser under the
Offer Agreement shall have been satisfied; and
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(e) there shall exist no preliminary or permanent injunction, or any
order by the SEC, any state securities agency, or any court of competent
jurisdiction, delaying, restricting, preventing or prohibiting the purchase or
delivery of the Subject Shares.
14. Termination. If Purchaser has not purchased the Subject Shares
pursuant to the Offer and if Purchaser has not sent the Purchase Notice, prior
to the end of the Purchase Period, then at the end of the Purchase Period this
Agreement shall terminate without any liability hereunder on the part of
Purchaser or any Shareholder, unless the failure of Purchaser to purchase the
Subject Shares was caused by a breach of this Agreement by any Shareholder, OS
or Purchaser, in which event the non-breaching party shall have the right to
seek such remedies as may be available to it at law or in equity; provided,
however, that Sections 14, 15 and 18 hereof shall survive any termination of
this Agreement.
15. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given when delivered by facsimile (with
confirmation of delivery) or, personally, sent by overnight courier (providing
proof of delivery) or sent by registered or certified mail, postage prepaid as
follows:
(1) If to Trigran Investments, L.P.
0000 Xxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
(2) If to The Xxxxxx Family Limited Partnership
0000 Xxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
(3) If to the Xxxxxxx Xxxxxx 1990 Family Trust
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Xxxxxx X. Xxxxx, Trustee
X/x Xxxxx & Xxxxxx
Xxxxx 000
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No. (312) 236-3241
(4) If to Xxxxxxx Xxxxxx at:
0000 Xxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
with, in the case of 1- 4 above, a copy to:
Xxxxx & Ratner
Suite 800
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(5) If to Xxxxxxx X. Xxxxx at:
0 Xxxx Xxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
(6) If to Xxxxxx Xxxxxxx at:
Apt. 6J
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(7) If to Xxxxxx X. Xxxxxxx at:
00 Xxxxxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(8) If to Xxxxxx Xxxxx at:
0 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
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(9) If to Xxxxxx X. Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
(10) If to The Xxxxxx Biomechanics Group, Inc.
000 Xxxxxxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
in each case, with a copy to:
Xxxxxxx & Xxxxxxxx, LLC
Xxxxx 000
00 Xxxxxxx Xxxxxxxxx Xxxx.
Xxxxxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
(11) If to OS or Purchaser:
OrthoStrategies, Inc.
c/o Xxxxxx X. Xxxxxx
31 The Birches
Xxxxxx Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt. All notices, requests or instructions
given in accordance herewith shall be deemed received (a) on the date of
delivery, if hand delivered or delivered by telecopier; (b) one business day
after delivery to an overnight courier; and (c) two business days after the date
of mailing, if mailed.
(c) Interpretation. When a reference is made in this Agreement to an
Article or a Section, such reference shall be deemed made to an Article or a
Section of this
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Agreement, unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Unless the context otherwise requires, words
importing the singular shall include the plural, and vice versa. Wherever the
words "include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation." Capitalized
terms used and not otherwise defined in this Agreement shall have the respective
meanings assigned to them in the Offer Agreement.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
and their respective successors and assigns any rights or remedies hereunder.
(f) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to its conflicts of laws rules.
(g) Survival. The representations and warranties of each
Shareholder, the Company, OS and Purchaser contained herein, each as of the date
hereof and as of the Closing Date, as to his or its organization, authority to
enter into this Agreement, ownership of his or its Subject Shares, and brokers'
fees shall survive the delivery and sale of the Subject Shares pursuant to the
terms hereof.
(h) Expenses. Each of the parties hereto shall bear his or its own
expenses in connection with the execution, delivery and performance of this
Agreement and the transactions contemplated hereby.
16. Shareholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his capacity as such director or officer.
Each Shareholder signs solely in his capacity as the record or beneficial owner
of, or the trustee of a trust whose beneficiaries are the beneficial owners of,
such Shareholder's Subject Shares and nothing herein (including, without
limitation, the provisions of Section 5) shall limit or affect any actions taken
by a Shareholder in his capacity as an officer or director of the Company.
17. Exculpation. Notwithstanding any provision of this Agreement or the
Offer Agreement to the contrary, no action of any Shareholder who is a director
of the Company (a "Director") taken in his capacity as a Director, shall be, or
be deemed to be, a breach of any provision
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of this Agreement if such action is taken by the Director, in his sole
discretion, in the performance of his fiduciary or any other duty as a Director,
in the best interests of the Company or its shareholders or to comply with
applicable law and regulations.
18. Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of New York or in a New York state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of New York or
any New York state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party will
not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that such party will not
bring any action relating to this Agreement or the transactions contemplated
hereby in any court other than a Federal court sitting in the State of New York
or a New York state court and (iv) waives any right to trial by jury with
respect to any claim or proceeding related to or arising out of this Agreement
or any of the transactions contemplated hereby.
19. Public Announcements. No Shareholder shall issue any press release or
make any public statement with respect to this Agreement and the purchase of its
or his Subject Shares hereby, without the prior written consent of OS, which may
not be unreasonably withheld, except as may be required by applicable law, the
regulations of the SEC, court process or by obligations pursuant to any listing
agreement with any national securities exchange; provided that in such case such
Shareholder shall provide a copy of the proposed release in advance to OS and
provide OS with an opportunity to comment thereon in a timely manner, unless
emergency circumstances preclude such procedure. This restriction does not
extend to such press releases as the Shareholders, in their capacities as
officers and directors of the Company, may determine to issue in connection with
the Offer.
20. Confidential Information. Each Shareholder, individually and not
jointly, covenants and agrees that from and after the purchase of such
Shareholder's Shares pursuant to Section 1 or Section 6 hereof, such Shareholder
shall keep secret all non-public Confidential Information (as defined below) of
the Company and not to disclose it to anyone outside the Company or use it for
their own account or the account of others without the Company's prior written
consent except for such Confidential Information which:
(1) is or becomes generally available to the public through no act on the
part of such Shareholder;
(2) is or becomes available on a non-confidential basis from a party that
is not subject to an obligation of confidentiality with respect thereto; or
(3) is required to be disclosed pursuant to subpoena, court order or
applicable law.
-12-
"Confidential Information" shall include proprietary information about the
Company's business, products, costs, profits, finances, internal financial
statements and projections, markets, sales, customers, vendors, personnel,
pricing policies, operational methods, technical processes and methods, plans
for future developments, specifications, trade secrets, technology, know-how,
research and development. This Section 20 shall survive and continue in effect
from and after the purchase of Shares pursuant to Section 1 or Section 6 hereof.
-13-
IN WITNESS WHEREOF, OS, Purchaser, the Company and the Shareholders have
caused this Agreement to be duly executed and delivered as of the date first
written above.
--------------------------------------
XXXXXXX XXXXXX
--------------------------------------
XXXXXXX X. XXXXX
--------------------------------------
XXXXXX XXXXXXX
--------------------------------------
XXXXXX X. XXXXXXX
--------------------------------------
XXXXXX XXXXX
--------------------------------------
XXXXXX X. XXXXXX
THE XXXXXX BIOMECHANICS GROUP, INC.
By:
-----------------------------------
ORTHOSTRATEGIES, INC.
By:
-----------------------------------
XXXXXX X. XXXXXX,
PRESIDENT
-14-
ORTHOSTRATEGIES ACQUISITION CORP.
By:
-----------------------------------
XXXXXX X. XXXXXX,
PRESIDENT
TRIGRAN INVESTMENTS, L.P.
By: TRIGRAN INVESTMENTS, INC.,ITS GENERAL PARTNER
By:
-------------------------------
XXXXXXX XXXXXX,
PRESIDENT
XXXXXXX XXXXXX 1990 FAMILY TRUST
By:
-----------------------------------
XXXXXXX XXXXXX,
TRUSTEE
THE XXXXXX FAMILY LIMITED PARTNERSHIP
By:
-----------------------------------
XXXXXXX XXXXXX,
GENERAL PARTNER
-15-
EXHIBIT A
Shareholders and Subject Shares Owned by Them
Shares Owned Director Shares Total
------------ --------------- -----
Trigran Investments, L.P. 620,953 620,953
The Xxxxxx Family Limited Partnership 30,000 30,000
Xxxxxxx Xxxxxx 65,000 11,000(1) 76,000
Xxxxxxx Xxxxxx 1990 Family Trust 10,400 10,400
Xxxxxxx X. Xxxxx 62,333(1) 11,000(1) 73,333
Xx. Xxxxxx Xxxxxxx 224,867(1) 224,867
Xxxxxx X. Xxxxxx 20,000(1) 20,000
Xxxxxx X. Xxxxxxx 40,500 11,000(1) 51,500
Xxxxxx Xxxxx 248,553 248,553
--------- ------ ---------
1,322,606 33,000 1,355,606
(1) These shares bear legends stating that they have not been registered under
the Securities Act of 1933 and may not be transferred without registration
or an exemption therefrom and may be considered "Restricted Stock"
Shareholders and Options Owned by Them
Number Agreggate
Grant of Exercise Expiration Purchase
Date Shares Price Date Price
---- ------ ----- ---- -----
Xxxxxxx Xxxxxx 10/02/97 25,000 1.875 10/02/02 $10
11/30/98 20,000 1.125 11/30/08 $8,000
Xxxxxxx X. Xxxxx 11/30/98 75,000 1.125 11/30/08 $30,000
Xxxxxx X. Xxxxxxx 11/30/98 5,000 1.125 11/30/08 $2,000
Xxxxxx X. Xxxxxx 11/30/98 75,000 1.125 11/30/08 $30,000
05/18/99 25,000 1.5 05/18/99 $625
------- -------
Total 225,000 $70,635
-16-
