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EXHIBIT 10(ee)
SHARE EXCHANGE AGREEMENT
Agreement effective as of the 2nd day of April, 1998, by and among
SAFETY 1ST, INC., a Massachusetts corporation, having a principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000 (the "Company"), BEAR,
XXXXXXX & CO., INC. having a principal place of business at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Bear Xxxxxxx") and BT CAPITAL PARTNERS, INC. having a
principal place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("BT
Capital"). Each capitalized term used herein without definition shall have the
meaning assigned thereto in the Purchase Agreement (as defined below) and in the
Exhibits thereto.
Whereas, pursuant to a Stock and Warrant Purchase Agreement dated as of
July 30, 1997 (the "Purchase Agreement"), the Company issued 7,500 shares of
Series A Preferred Stock to Bear Xxxxxxx and 7,500 shares of Series A Preferred
Stock to BT Capital; and
Whereas, pursuant to a Certificate of Designation of Series B Preferred
Stock (the "Certificate of Designation") the Company has designated additional
shares of its preferred stock as Series B Preferred Stock (the "Series B
Preferred Stock"); and
Whereas, the parties desire to memorialize their prior agreement on or
before December, 1997 by which (i) the Company would be permitted to redeem at
any time, and at its option, any or all of the shares of Series A Preferred
Stock then outstanding, and (ii) the Investors would be permitted under certain
conditions to redeem at any time, and at their option, all of the shares of
Series A Preferred Stock then outstanding, and wish to effect such agreement by
exchanging the Series A Preferred Stock with Series B Preferred Stock (the
"Exchange").
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Any references contained in the Purchase Agreement, the Voting
Agreement, or any of the Warrants to "Series A Preferred Stock", to "Purchased
Shares", to "Shares" or to "Restricted Securities" shall, with respect to
matters relating to events or transactions occurring on and after this date, be
deemed to refer to the Series B Preferred Stock. For purposes of resolving any
ambiguity, the Company acknowledges that the computation of the Series B
Preferred Liquidation Preference (as defined in the Certificate of Designation)
and the price per share to be paid upon any redemption of the Series B Preferred
Stock shall include the amount of accrued and unpaid dividends (whether or not
declared) on the Series A Preferred Stock through the effective date of the
Exchange.
2. On or promptly after the execution of this Agreement:
(a) BT Capital shall surrender to the Company Certificate No.
P-1 representing 7,500 shares of the Company's Series A Preferred Stock, and in
exchange therefor, the Company shall issue and deliver to BT Capital
Certificate No. P-3 representing 7,500 shares of the Company's Series B
Preferred Stock.
(b) Bear Xxxxxxx shall surrender to the Company Certificate
No. P-2 representing 7,500 shares of the Company's Series A Preferred Stock,
and in exchange therefor, the Company
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shall issue and deliver to Bear Xxxxxxx Certificate No. P-4 representing 7,500
shares of the Company's Series B Preferred Stock.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Investors that the shares of Series B Preferred
Stock, when issued as aforesaid, will be duly authorized, validly issued, fully
paid and nonassessable and not subject to any pre-emptive rights, rights of
first refusal or other similar rights of the stockholders of the Company.
4. This agreement may be executed in counterparts each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute one in the same agreement. This Agreement may be
executed and delivered by telecopier with the same force and effect as if the
same were a fully executed and delivered original manual counterpart.
5. The validity, interpretation and enforcement of this Agreement shall
be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first set forth above.
Witness: SAFETY 1ST, INC.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Its President and COO
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hereunto duly authorized
BEAR, XXXXXXX & CO., INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Its Senior M.D.
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hereunto duly authorized
BT CAPITAL PARTNERS, INC.
/s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Xxxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxxx
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Its Managing Director
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hereunto duly authorized
